f 


PRINCIPLES 


OF    THE 


CONSTITUTIONAL    LAW 


OF    THE 


UNITED   STATES 


BY 

WESTEL  W.  WILLOUGHBY 

PROFESSOR    OF    POLITICAL    SCIENCE    IN    THE    JOHNS   HOPKINS 
UNIVERSITY.      AOTHOR   OF   "  THE   CONSTITUTIONAL  LAW 
OF  THE   UNITED   STATES,"    "  THE    AMERICAN 

ETC. 


NEW  YORK 

BAKER,  VOORHIS  &  CO. 
1917 


COPYRIGHT,  1912,  BY 
WESTEL  W.  WILLOUGHBY 


PRESS    OF    T.     MOREV    fc    SON 
GREENFIELD,    MASS..    U.    S.    A. 


PREFACE 

This  volume  is  an  abridgment  of  the  author's  larger 
treatise  in  two  volumes,  published  in  1910  under  the  title 
The  Constitutional  Law  of  the  United  States.  The  aim  has 
been  to  present  the  general  principles  of  our  constitutional 
jurisprudence  in  a  form  suitable  for  class-room  use.  In 
pursuance  of  this  aim  care  has  been  taken  to  cite  those 
cases  which  not  only  support  the  positions  stated  in  the 
text  but  which  will  best  repay  individual  examination 
and  study  by  the  student.  In  particular  the  effort  has 
been  made  to  suggest,  and  in  a  measure  to  discuss,  the 
unsettled  questions  of  our  Federal  jurisprudence.  The 
necessary  limits  of  space  have  prevented  in  many  instances 
an  adequate  presentation  of  the  arguments  supporting 
the  doctrines  stated,  but,  from  a  pedagogic  point  of  view 
this  may  be  a  merit  rather  than  a  defect,  for  it  will  furnish 
opportunity  for  a  presentation  by  the  students  of  the 
court's  reasoning  as  gained  by  a  reading  of  the  cases,  and 
a  criticism  by  the  instructor  of  the  reasoning  as  thus  pre- 
sented. 

For  the  convenience  -of  both  the  instructor  and  the 
student  reference  is  made  in  all  cases  to  the  Supreme  Court 
Reporter  and  to  the  Lawyers'  Co-operative  Edition,  as 
well  as  to  the  official  reports  of  the  Supreme  Court  of 
the  United  States. 

The  author  is  under  great  obligation  to  Mr.  J.  Wallace 
Bryan  of  the  Maryland  Bar  for  his  aid  in  reading  the 
proof  of  this  volume. 


TABLE  OF  CONTENTS 

Page 
PREFACE iii 

TABLE  OF  CASES xix 

CHAPTER  I 

INTRODUCTORY — PRELIMINARY  DEFINITIONS 1 

State  and  government  distinguished — The  unity  and  in- 
divisibility of  sovereignty — Distinction  between  Con- 
federacy and  Federal  State — Constitutional  law — 
The  American  doctrine  of  the  supremacy  of  the  Con- 
stitution. 

CHAPTER  II 

THE  SUPREMACY  OF  FEDERAL  AUTHORITY 18 

Federal  supremacy. 

CHAPTER  III 

PRINCIPLES    OF    CONSTITUTIONAL    CONSTRUCTION — CIRCUM- 
STANCES UNDER  WHICH  THE  COURTS  WILL  HOLD  AN  ACT 

OF  CONGRESS  VOID 29 

Extrinsic  evidence — Technical  terms — The  interpretative 
value  of  debates  in  constitutional  conventions — The 
Federalist — History  of  the  times — Interpretative 
value  of  legislative  debates — Resort  to  the  Preamble 
for  purpose  of  construction — The  Constitution  is  to 
be  construed  as  a  whole — So-called  "natural "  or  " un- 
written constitutional"  laws  have  no  constructive 
force — The  "spirit"  of  th"  Constitution — Applica- 
bility of  constitutional-  provisions  to  modern  condi- 
tions— Stare  decisis. 


vi  CONTENTS 

CHAPTER  IV 

Page 
THE  DIVISION  OF  POWERS  BETWEEN  THE  UNITED  STATES  AND 

ITS  MEMBER  STATES 47 

Federal  powers — Express  and  implied  powers — Federal 
powers  to  be  liberally  construed — "Necessary  and 
proper" — McCulloch  v.  Maryland — Resulting  powers 
— Inherent  sovereign  powers — Express  limitations 
upon  the  Federal  Government — Implied  limitations 
upon  the  Federal  Government — Exclusive  and  con- 
current Federal  powers. 

CHAPTER  V 

THE  FEDERAL  CONTROL  OF  THE  FORM  OF  STATE  GOVERNMENTS      58 
State  autonomy — Republican  form  of  government  defined 
— Constitutionality  of  referendum— Decision  as  to 
de  jure  character  of  State  governments — Public  office 
not  a  property  or  contract  right. 

CHAPTER  VI 

FEDERAL  SUPERVISION  OF  STATE  ACTIVITIES;  THE  FOURTEENTH 

AMENDMENT 65 

The  Fourteenth  Amendment — The  Slaughter  House  Cases 
— Federal  privileges  and  immunities — Effect  of  Four- 
teenth Amendment  upon  rights  enumerated  in  first 
eight  Amendments — Legislative  power  granted  Con- 
gress by  the  Fourteenth  Amendment — Summary. 

CHAPTER  VII 

INTERSTATE  RELATIONS;  FULL  FAITH  AND  CREDIT  CLAUSE     .      76 
States  independent  of  one  another — Federal  judgments 
and  decrees — Full  faith  and  credit  clause  applies  only 
to  civil  judgments  and  decrees — Judgments  m  rem 
and  in  personam — Marriage  and  divorce. 

CHAPTER  VIII 

INTERSTATE  RELATIONS;  THE  COMITY  CLAUSE 83 

Privileges  and  immunities — Political  privileges — Privileges 
of  one  State  not  carriecl  into  other  States — Corpora- 
tions not  citizens  within. the  meaning  of  the  comity 
clause. 


CONTENTS  vii 

• 

CHAPTER  IX 

Page 

INTERSTATE  RELATIONS:  EXTRADITION 87 

Interstate  extradition — Extradition  by  the  States  of  the 
Union  to  foreign  States — Auxiliary  legislation  by  the 
States — Judicial  examination  of  extradition  proceed- 
ings— Trial  of  offenses  other  than  those  for  which 
extradited — Who  is  a  "fugitive" — Fugitive  slaves. 

CHAPTER  X 

INTERSTATE  RELATIONS:  COMPACTS  BETWEEN  THE  STATES, 
AND  BETWEEN  THE  UNITED  STATES  AND  THE  STATES.     .     .       92 
Compacts  between  the  States — Compacts   between   the 
States  and  the  United  States. 

CHAPTER  XI 

THE  PERSONS  SUBJECT  TO  THE  JURISDICTION  OF  THE  UNITED 

STATES:  STATUS  OF  ALIENS 95 

Territorial  sovereignty — Status  of  aliens — Exclusion  and 
expulsion  of  aliens — Protection  of  the  persons  and 
property  of  aliens. 

CHAPTER  XII 

% 

AMERICAN  CITIZENSHIP 99 

Citizenship  defined — State  and  Federal  citizenship  dis- 
tinguished— The  Fourteenth  Amendment — Wong 
Kim  Ark  case. 

CHAPTER  XIII 

NATURALIZATION:  EXPATRIATION 104 

Naturalization  by  statute — Expatriation. 

CHAPTER  XIV 

THE  LEGAL  STATUS  OF  INDIANS 109 

Indian  lands — The  legal  status  of  Indians — Federal  juris- 
diction exclusive.  Cherokee  Nation,  v.  Georgia — 
Naturalization  of  Indians  by  statute. 


viii  CONTENTS 

CHAPTER  XV 

Page 

THE  ADMISSION  OF  NEW  STATES  . 117 

The  admission  of  new  States. 

CHAPTER  XVI 

THE  POWER  OF  THE  UNITED  STATES  TO  ACQUIRE  TERRITORY     120 
Sources  of  power — The  right  to  annex  based  on  the  treaty 
and  war-making  powers — The  modes  in  which  terri- 
tory may  be  acquired  by  the  United  States — Annexa- 
tion by  joint  resolution. 

CHAPTER  XVII 

THE  CONSTITUTIONAL  SOURCES  OF  THE  POWER  OF  CONGRESS 

TO  GOVERN  THE  TERRITORIES 127 

Power  to  govern  Territories  not  questioned — Power  to 
govern  absolute — Territorial  governments  are  con- 
gressional governments. 

CHAPTER  XVIII 

THE  DISTRICT  OF  COLUMBIA .     .     130 

The  government  of  the  District  of  Columbia — Places  pur- 
chased. 

CHAPTER  XIX 

MILITARY   AND   PRESIDENTIAL   GOVERNMENT   OF   ACQUIRED 

TERRITORY 134 

Conquest  or  military  occupation  does  not  operate  to  annex 
territory — Presidential  government. 

CHAPTER  XX 

ANNEXATION  OF  TERRITORY  BY  TREATY     . 137 

Territory  may  be  annexed  by  Treaty — Presidential 
powers. 

CHAPTER  XXI 

THE  DISTINCTION  BETWEEN  INCORPORATED  AND  UNINCORPO- 
RATED TERRITORIES 141 

Limitations   upon   Congress — Distinction   between   incor- 
porated and  unincorporated  Territories — The  Insular 
Cases — Hawaii — Alaska. 


CONTENTS  ix 

CHAPTER  XXII 

Page 

CITIZENSHIP  IN  THE  TERRITORIES       150 

Effect  of  Cession — Treaty  provisions — Statutory  provi- 
sions. 

CHAPTER  XXIII 

FOREIGN  RELATIONS:  THE  TREATY  POWER 154 

Federal  powers  exclusive — Federal  powers  comprehensive 
—The  manner  of  exercise  of  the  treaty-making  power 
— Negotiation  of  treaties — The  power  of  the  Senate 
to  amend  treaties — International  agreements  not  re- 
quiring submission  to  the  Senate — Extraditions. 

CHAPTER  XXIV 

CONGRESSIONAL    LEGISLATION    FOR   THE    ENFORCEMENT    OF 

TREATIES 165 

Auxiliary  legislation  often  necessary. 

CHAPTER  XXV 

THE  CONSTITUTIONAL  EXTENT  OF  THE  TREATY-MAKING  POWER  169 
Treaty-making  power  not  expressly  limited — The  treaty- 
making  power  and  the  reserved  rights  of  the  States — 
Implied  limitations  upon  treaty-making  powers — 
The  denunciation  of  treaties — Construction  of 
treaties. 

CHAPTER  XXVI 

THE  AMENDMENT  OF  THE  FEDERAL  CONSTITUTION  .     .     177 

The  amending  clause. 

CHAPTER  XXVII 

CONGRESS — ITS  ORGANIZATION:  PRIVILEGES  OF  MEMBERS     .     180 
Qualifications  for  senators  and  representatives — Qualifica- 
tions  determined   by   Congress — Disqualification   of 
congressmen    to   hold   Federal   office — Privileges   of 
members  of  Congress. 


x  CONTENTS 

CHAPTER  XXVIII 

Page 

ELECTION  OF  MEMBERS  OF  CONGRESS 186 

Their  apportionment  among  the  States — Educational 
qualifications — Mode  of  apportionment — Congres- 
sional districts — Suffrage  qualifications — Federal 
control  of  congressional  elections — Enforcement 
clause  of  the  Fifteenth  Amendment — Disfranchise- 
ment  clauses  of  the  Southern  States — Election  of 
Senators — Vacancies  in  the  Senate — Vacancies  in  the 
House  of  Representatives. 

CHAPTER  XXIX 

THE  PROCESS  OF  LEGISLATION  AS  CONSTITUTIONALLY  DETER- 
MINED       199 

Constitutional  provisions — Conclusiveness  of  the  records 
of  congressional  proceedings — Constitutional  force  of 
rules  of  the  House  and  Senate — Revenue  measures — 
Presidential  participation  in  law-making. 

CHAPTER  XXX 

THE  GENERAL  POWERS  OF  CONGRESS 205 

General  powers. 

CHAPTER  XXXI 

FEDERAL  POWERS  OF  TAXATION 208 

Taxes  defined — Taxation  and  eminent  domain — The  ex- 
tent of  the  taxing  power — The  use  of  the  taxing 
power,  not  for  revenue  but  for  regulation — Federal 
powers  of  taxation — Limitations  upon  the  Federal 
taxing  power — Due  process  of  law  and  taxation — 
Taxation  must  be  for  a  public  purpose — Power  of 
Congress  to  appropriate  money — Equality  in  taxa- 
tion— Uniformity  of  taxation — Protective  tariffs — 
Bounties — Export  duties — Direct  taxes — Income  Tax 
case— Pollock  v.  Farmers'  L.  &  T.  Co.— The  Federal 
Corporation  Tax  of  1909 — Due  process  of  law  and 
taxation — Borrowing  power  of  the  United  States: 
legal  tender. 


CONTENTS  xi 

CHAPTER  XXXII 

Page 

INTERSTATE  AND  FOREIGN  COMMERCE 231 

The  commerce  clause:  its  importance — Commerce  de- 
fined: transportation  essential — The  instrumentali- 
ties of  commerce — Commerce  embraces  water  navi- 
gation— Transportation  of  persons  is  commerce — 
Bills  of  exchange  not  articles  of  commerce — Insurance 
not  commerce — Lotteries — Bearing  of  the  lottery  de- 
cision on  insurance — International  Text  Book  Co.  v. 
Pigg — Commerce  does  not  include  the  production  of 
the  commodities  transported — Intent  to  export  not 
controlling — Interstate  commerce  includes  the  sale  of 
the  articles  imported — The  original  package  doctrine 
— Exclusiveness  of  Federal  control  over  interstate 
commerce — Gibbons  v.  Ogden — The  police  powers  of 
the  States  and  commerce — State  regulation  of  inter- 
state trains — State  inspection  laws — The  States  may 
absolutely  exclude  from  their  borders  only  such  arti- 
cles as  are  intrinsically  not  merchantable  or  not  legiti- 
mate articles  of  commerce — Liquor  legislation — The 
Wilson  Act — Oleomargarine  cases — The  States  and 
foreign  corporations  doing  an  interstate  commerce 
business — Foreign  corporations  "doing  business" 
within  the  States — State  taxation  and  interstate  and 
foreign  commerce — State  taxation  of  articles  of  com- 
merce— State  taxation  of  goods  in  transit — State 
taxation  of  persons  in  transit — Taxation  of  property 
of  interstate  carriers — State  taxation  of  receipts  from 
interstate  commerce — Charter  provisions — Taxation 
of  capital  stock  of  interstate  commerce  companies — 
State  regulation  of  carriers — State  regulation  of  rail- 
way rates — Routes  running  outside  the  State  but 
with  both  terminals  within  the  State. 

CHAPTER  XXXIII 

FEDERAL  LEGISLATIVE  POWER  OVER  INTERSTATE  COMMERCE  267 
Federal  legislation — Federal  police  regulations — Prohibi- 
tion of  interstate  commerce — The  Federal  Employers' 
Liability  Law  of  1906 — Regulation  of  interstate  rail- 
road rates— The  Federal  Anti-trust  Act— The  Federal 
control  of  corporations  under  the  commerce  clause — 


xii  CONTENTS 

Page 

Federal  taxing  power  and  interstate  commerce — Fed- 
eral control  of  navigable  waters — Federal  control  of 
foreign  commerce — Commerce  with  the  Territories 
and  with  the  District  of  Columbia — Commerce  with 
Indians. 

CHAPTER  XXXIV 

OTHER  POWERS  OF  CONGRESS 294 

Naturalization — Bankruptcy:  definition  of — State  bank- 
ruptcy laws  and  the  obligation  of  contracts — State 
laws  have  no  extraterritorial  force — State  laws  sus- 
pended but  not  annulled  by  Federal  bankruptcy  laws: 
Effect  of  the  law  of  1898 — Coinage — Weights  and 
measures — Counterfeiting — Postal  Service :  Federal 
power — Exclusion  from  the  mails:  Freedom  of  press: 
Searches  and  seizures:  Ex  parte  Jackson — Protection 
of  the  mails:  In  re  Debs — Patents — Copyrights — 
Trade-marks — Piracies,  etc. — Declaration  of  war — 
Letters  of  marque  and  reprisal  and  captures  on  land 
and  water — Other  military  powers. 

CHAPTER  XXXV 

PROHIBITIONS  ON  CONGRESS 308 

Absolute  and  qualified  prohibitions — Importation  of  slaves 
— Suspension  of  habeas  corpus — Bills  of  attainder — 
Ex  post  facto  legislation — Appropriations — Jury  trial 
— Courts  and  actions  in  which  jury  not  required — In- 
famous crimes — Waiver  of  constitutional  guaranties 
— Speedy  trial — Public  trial — Double  jeopardy — 
Jeopardy  and  the  right  of  appeal — Self-incrimination 
— Immunity  from,  not  a  requirement  of  due  process  of 
law — Unreasonable  searches  and  seizures — Cruel  and 
unusual  punishments — Treason — Treason  against  a 
State  of  the  Union — Offenses,  other  than  treason, 
against  the  existence  and  operation  of  the  Federal 
Government — Jury  trial  in  civil  suits — Religious  free- 
dom— Freedom  of  speech  and  press — The  right 
peaceably  to  assemble  and  petition — The  right  to 
bear  arms — The  quartering  of  troops — Slavery  and 
involuntary  servitude — Involuntary  servitude:  Peon- 
age. 


CONTENTS  xiii 

CHAPTER  XXXVI 

Page 

DUE  PROCESS  OF  LAW 333 

Due  process  of  law:  Definition  of — Due  process  and  sub- 
stantive rights— Life— Liberty— Police  power  defined 
— Equal  protection  of  the  law — Obligations  of  con- 
tracts. 

CHAPTER  XXXVII 

PROHIBITIONS  LAID  UPON  THE  STATES 346 

Bills  of  credit — Ex  post  facto  legislation — Equal  protection 
of  the  law — Illustrative  cases  arising  under  the  equal 
protection  clause — Classifications — Equal  protection 
requires  similar  but  not  the  same  privileges.  ~ 

CHAPTER  XXXVIII 

THE  OBLIGATION  OF  CONTRACTS 356 

The  obligation  of  contract  clause — What  constitutes  a  con- 
tract— Charters  of  public  corporations — Charters  of 
private  corporations  are  contracts:  The  Dartmouth 
College  case — Charter  grants  strictly  construed — The 
police  power  and  the  obligation  of  contracts — Tax 
exemptions — Construction  of  contracts — Force  of 
State  decisions. 

CHAPTER  XXXIX 

CONSTITUTIONAL  LIMITATIONS  UPON  THE  TAXING  POWERS  OF 

THE  STATES 368 

Constitutional  provisions — State  taxation  of  Federal  gov- 
ernmental agencies — Property  of  Federal  agencies  may 
be  taxed — State  taxation  of  Federal  property — State 
taxation  of  Federal  securities — Federal  taxation  of 
State  agencies — Federal  taxation  of  State  documents 
— Federal  exercise  of  eminent  domain  in  the  States — 
Special  assessments — Taxes  and  special  assessments 
distinguished — Constitutional  requirements  of  special 
assessments — Special  assessments  in  excess  of  bene- 
fits— Property  taxed  must  be  within  the  jurisdiction 
of  the  State — Taxation  of  tangible  personal  property 
— Taxation  of  property  situated  in  several  jurisdic- 


xiv  CONTENTS 


tions — Taxation  of  movables — Taxation  of  intangible 
personal  property — Taxation  of  shares  of  stock,  mort- 
gages and  credits — Taxation  of  franchises — Double 
taxation. 


CHAPTER  XL 

THE  FEDERAL  JUDICIARY:  ITS  ORGANIZATION 396 

Constitutional  provisions — Inferior  Federal  courts — The 
Supreme  Court:  Its  organization — Circuit  Courts  of 
Appeals:  Organization — District  Courts:  Organiza- 
tion— Court  of  Customs  Appeals — Commerce  Court 
— Court  of  Claims:  Organization — Judiciary  of  the 
District  of  Columbia — The  Supreme  Court:  Original 
jurisdiction — Inferior  courts  may  be  granted  juris- 
diction of  cases  within  the  original  jurisdiction  of  the 
Supreme  Court — Supreme  Court:  Appellate  jurisdic- 
tion— Appeals  from  the  District  Courts — Appeals 
from  Circuit  Courts  of  Appeals — Writs  of  error  to 
State  courts — Circuit  Courts  of  Appeals — Jurisdic- 
tion— District  Courts:  Jurisdiction — Court  of  Claims: 
Jurisdiction — Court  of  Customs  Appeals — Jurisdiction 
— The  Commerce  Court — Jurisdiction  of  Federal 
courts  based  upon  diversity  of  citizenship — Citizen- 
ship of  corporations — National  banks — Federally 
chartered  corporations — Fictitious  citizenship — Fed- 
eral jurisdiction  of  cases  arising  under  the  Constitu- 
tion, treaties  and  act  of  Congress — Removal  of  suits 
from  State  to  Federal  courts — Statutory  provision 
for  removal  from  State  to  Federal  courts. 


CHAPTER  XLI   fc 

THE  INDEPENDENCE  OF  THE  FEDERAL  JUDICIARY  ....  420 
The  independence  of  the  Federal  judiciary — Federal 
writs  of  habeas  corpus — Writ  issued  only  when  im- 
perative— Injunctions  from  Federal  to  State  courts — 
State  restrictions  upon  the  right  of  removal  of  suits 
from  State  to  Federal  courts — Congress  may  not 
confer  jurisdiction  upon  State  courts. 


CONTENTS  xv 

CHAPTER  XLII 

Page 

POLITICAL  QUESTIONS 434 

Political  questions — Courts  will  exercise  jurisdiction  when 
private  rights  are  involved — Courts  will  not  perform 
administrative  functions. 

CHAPTER  XLIII 

THE  LAW  ADMINISTERED  BY  FEDERAL  COURTS 439 

Federal  courts  and  international  law — Federal  criminal 
law — Federal  courts  and  the  construction  of  State 
laws — Rules  of  evidence  and  procedure — Unsettled 
construction  of  State  law — Federal  courts  and  the 
common  law — Interstate  commerce  and  common  law. 

CHAPTER  XLIV 

SUITS  BETWEEN  STATES  AND  TO  WHICH  A  STATE  OR  THE 

UNITED  STATES  is  A  PARTY  PLAINTIFF 449 

Suits  of  States  against  individuals — Suits  between  the 
United  States  and  a  State  of  the  Union — Suits  be- 
tween a  State  and  foreign  States  or  their  citizens. 

CHAPTER  XLV 

THE  SUABILITY  OF  STATES 455 

A  sovereign  State  may  not  be  sued  without  its  consent — 
Effect  of  Eleventh  Amendment  upon  Federal  con- 
stitutional rights  guaranteed  against  State  violation 
— Suits  to  recover  specific  pieces  of  property  held  by 
the  State. 

CHAPTER  XLVI 

ADMIRALTY  AND  MARITIME  JURISDICTION 461 

Admiralty  and  maritime  jurisdiction  defined — Admiralty 
jurisdiction  does  not  carry  with  it  general  political 
jurisdiction  over  navigable  waters — Admiralty  courts 
— State  legislative  powers  with  reference  to  admiralty 
matters — Legislative  powers  of  Congress  flowing  from 
admiralty  and  maritime  jurisdiction. 


xvi  CONTENTS 

CHAPTER  XLVII 

Page 

IMPEACHMENT 467 

Constitutional  provisions — Who  are  civil  officers — For 
what  offenses  impeachment  will  lie — Punishment — 
Effect  of  dissolution  of  Congress. 

CHAPTER  XLVIII 

THE  ELECTION  OF  THE  PRESIDENT  AND  VICE-PRESIDENT  .  .  470 
The  Executive  Department — Appointment  of  presidential 
electors;  Plenary  powers  of  the  States — Original  pro- 
vision of  the  Constitution  as  to  election  of  President 
and  Vice-President;  Inadequacy  of — Twelfth  Amend- 
ment— Counting  the  votes — Laws  of  1887 — Presi- 
dential succession — Act  of  1792. 

CHAPTER  XLIX 

THE  POWERS  AND  DUTIES  OF  THE  PRESIDENT 477 

The  president  as  administrative  chief — Administ  -ative 
decentralization  in  the  States — Increasing  integration 
of  Federal  administration — Information  to  Congress 
—The  President's  control  of  foreign  relations — The 
veto  power  of  the  President — The  President's  par- 
doning power. 

CHAPTER  L 

THE  APPOINTMENT  AND  REMOVAL  OF  OFFICERS  ....  485 
Constitutional  provisions — "Officer"  of  the  United  States 
defined — Inferior  officers — Nominations — Creation  of 
offices — Civil  Service  requirements — The  power  of 
removal — Congress  may  regulate  the  removal  of  in- 
ferior officers — Injunctions  to  prevent  removal — 
Mandamus  to  reinstate  in  office. 

CHAPTER  LI 

MILITARY  LAW 491 

Military  powers  of  the  General  Government — Military 
law — Reference  to  members  of  the  army  and  navy — 
Articles  of  war — Obligations  assumed  by  enlistment 
— Courts-martial — Jurisdiction  of  courts-martial  over 


CONTENTS  xvii 

Page 

offenses  which  are  also  violations  of  the  local  civil 
law — The  power  of  Congress  to  vest  in  military  tri- 
bunals exclusive  jurisdiction  over  all  offenses  com- 
mitted by  military  persons,  including  offenses  which 
are  also  crimes  against  the  civil  law — Powers  of  the 
Commander-in-Chief  of  the  army  and  navy — Decla- 
ration of  war — The  prosecution  of  war — The  organi- 
zation and  disciplining  of  the  militia — The  militia  as 
an  arm  of  the  Federal  Government — The  uses  of  the 
militia  and  Federal^  troops  to  suppress  domestic  dis- 
order— Military  government — Military  government 
of  foreign  territory — Military  government  of  domes- 
tic territory  in  times  of  peace. 

CHAPTER  LII 

MARTIAL  LAW 508 

Martial  law  denned — Martial  law  a  form  of  the  police 
power — Martial  power  limited — Martial  law  does 
not  abrogate  civil  law  and  civil  guarantees — Martial 
law  and  military  government  distinguished — Martial 
law  in  time  of  war — Exercise  of  military  authority 
outside  the  immediate  theatre  of  war:  Ex  parte  Milli- 
gan — Habeas  corpus — Suspension  of  the  writ — Power 
of  the  President  to  suspend  the  writ. 

CHAPTER  LIII 

THE  SEPARATION  OF  POWERS 521 

The  separation  of  powers — Separation  of  powers  in  the 
States  not  compelled  by  the  Federal  Constitution — 
Powers  separated  in  the  Federal  Government — Sepa- 
ration of  powers  not  complete — The  general  principle 
stated — Declaratory  and  retroactive  legislation — 
Legislative  control  of  judicial  procedure  and  powers 
— Jurisdiction  and  judicial  power  distinguished — 
Contempts — Pardoning  powers  of  the  President  and 
contempts— Power  of  Congress  to  punish  for  con- 
tempt— The  performance  of  administrative  acts  by 
the  courts — Judicial  review  of  administi alive  deter- 
minations— Judicial  powers  of  administrative  agents. 


xviii  CONTENTS 

CHAPTER  LIV 

Page 

CONCLUSIVENESS    OF   ADMINISTRATIVE    DETERMINATIONS     .       .      532 

Due  process  of  law  does  not  demand  determination  of 
rights  in  courts  of  law — Fraud  orders — Chinese  Ex- 
clusion cases — Ju  Toy  case — Constitutional  require- 
ments of  administrative  determinations — Arbitrary 
administrative  discretion — Mandamus — The  amena- 
bility of  the  President  to  compulsory  judicial  process 
— Obligation  of  the  President  to  enforce  laws  be- 
lieved by  him  to  be  unconstitutional — Liability  of  the 
State  for  the  acts  of  its  officers — Legal  liability  of 
public  officials  to  private  individuals  injured  by  their 
acts — Ultra  vires  acts — Responsibility  of  officers  for 
improper  exercise  of  authority — Malice,  etc. — Respon- 
sibility of  judges  of  courts  of  superior  or  general  ju- 
risdiction. 

CHAPTER  LV 

THE  DELEGATION  OF  LEGISLATIVE  POWER 547 

Delegated  power  may  not  be  delegated — Local  governing 
powers  may  be  delegated — Power  to  issue  administra- 
tive ordinances  may  be  delegated — Delegation  of 
rate-making  powers — The  referendum  as  a  delegation 
of  legislative  power — Administrative  ordinances. 


TABLE  OF  CASES 

A 

Page 

Ableman  v.  Booth,  21  How.  506;  16  L.  ed.  169. 24,  420 

Adair  v.  United  States,  208  U.  S.  161;  28  Sup.  Ct.  Rep.  277;  52 

L.  ed.  436 277 

Adams  v.  New  York,  192  U.  S.  585;  24  Sup.  Ct.  Rep.  372;  48  L. 

ed.  575 „ 335 

Adams  Express  Co.  v.  Iowa,  196  U.  S.  147;  25  Sup.  Ct.  Rep.  185; 

49  L.  ed.  424 250,  256 

v.  Kentucky,  206  U.  S.  129;  27  Sup.  Ct.  Rep.  606;  51  L.  ed. 

987 250 

v.  Ohio  State  Auditor,  165  U.  S.  194;  17  Sup.  Ct.  Rep.  305; 

41  L.  ed.  683 260,  389 

v.  Ohio  State  Auditor,  166  U.  S.  185;  17  Sup.  Ct.  Rep.  604; 

41  L.  ed.  965 394 

Addyston  Pipe  &  Steel  Co.  v.  United  States,  175  U.  S.  211;  20 

Sup.  Ct.  Rep.  96;  44  L.  ed.  136 282 

Ah  Chong,  In  re,  6  Sawyer,  451 172 

Alabama  v.  Burr,  115  U.  S.  413;  6  Sup.  Ct.  Rep.  81;  29  L.  ed. 

435 452 

Allen  v.  Riley,  203  U.  S.  347;  27  Sup.  Ct.  Rep.  95;  51  L.  ed.  216 

304,  372 
Allgeyer  v.  Louisiana,  165  U.  S.  578;  17  Sup.  Ct.  Rep.  427;  41  L. 

ed.  832 339 

Almy  v.  California,  24  How.  169;  16  L.  ed.  644 221 

Ambrosini  v.  United  States,  187  U.  S.  1;  23  Sup.  Ct.  Rep.  1;  47 

L.  ed.  49 379 

American  Banana  Co.  v.  United  Fruit  Co.,  213  U.  S.  347;  29  Sup. 

Ct.  Rep.  511;  53  L.  ed.  826 285 

American  Insurance  Co.  v.  Canter,  1  Pet.  511;  7  L.  ed.  242.  .  102, 

123,  127,  129,  144,  150 
American  Publishing  Co.  v.  Fisher,  166  U.  S.  464;  17  Sup.  Ct. 

Rep.  618;  41  L.  ed.  1079 144 

American  Refrigerator  Transit  Co.  v.  Hall,  174  U.  S.  70;  19  Sup. 

Ct.  Rep.  599;  43  L.  ed.  899 259 

xix 


xx  TABLE  OF  OASES 

Page 
American  School  of  Magnetic  Healing  v.  McAnnulty,  187  U.  S. 

94;  23  Sup.  Ct.  Rep.  33;  47  L.  ed.  90 534,  540 

American  Smelting  Co.  v.  Colorado,  204  U.  S.  103;  27  Sup.  Ct. 

Rep.  198;  51  L.  ed.  393 359 

American  Steel  &  Wire  Co.  v.  Speed,  192  U.  S.  500;  24  Sup.  Ct, 

Rep.  365;  48  L.  ed.  538 258 

American  Sugar  Refining  Co.  v.  Louisiana,  179  U.  S.  89;  21  Sup. 

Ct.  Rep.  43;  45  L.  ed.  102 217 

Ames  v.  Kansas,  111  U.  S.  449;  4  Sup.  Ct.  Rep.  437;  28  L.  ed. 

482 400 

Anderson  v.  Dunn,  6  Wh.  204;  5  L.  ed.  242 183,  529 

Anderson  v.  United  States,  171  U.  S.  604;  19  Sup.  Ct.  Rep.  50; 

43  L.  ed.  300 282 

Andrews  v.  Andrews,  188  U.  S.  14;  23  Sup.  Ct.  Rep.  237;  47  L. 

ed.  366 81 

Anglo-American  Provision  Co.  v.  Davis  Provision  Co.,  191 

U.  S.  373;  24  Sup.  Ct.  Rep.  92;  48  L.  ed.  225 80 

Antoni  v.  Greenhow,  107  U.  S.  769;  2  Sup.  Ct.  Rep.  91;  27  L. 

ed.  468 458 

Appleyard  v.  Massachusetts,  203  U.  S.  222;  27  Sup.  Ct.  Rep.  122; 

51  L.  ed.  161 91 

Arkansas  Rate  Cases,  187  Fed.  290 265 

Arthur  v.  Oakes,  63  Fed.  Rep.  310 332 

Asbell  v.  Kansas,  209  U.  S.  251;  28  Sup.  Ct.  Rep.  485;  52  L.  ed. 

778 247 

Ashley  v.  Ryan,  153  U.  S.  436;  14  Sup.  Ct.  Rep.  865;  38  L.  ed. 

773 263 

Atchison,  etc.,  R.  Co.  v.  Sowers,  213  U.  S.  55;  29  Sup.  Ct.  Rep. 

397;  53  L.  ed.  695 79 

Atherton  v.  Atherton,  181  U.  S.  155;  21  Sup.  Ct.  Rep.  544;  45 

L.  ed.  794 80 

Atlantic  C.  L.  R.  Co.  v.  North  Carolina  Corp.  Com.,  206  U.  S. 

1;  27  Sup.  Ct.  Rep.  585;  51  L.  ed.  933 549 

Atlantic  C.  L.  R.  Co.  v.  Riverside  Mills,  219  U.  S.  186;  31  Sup. 

Ct.  Rep.  164;  55  L.  ed.  167 285 

Atlantic  Coast  Line  Ry.  Co.  v.  Wharton,  207  U.  S.  328;  28  Sup. 

Ct.  Rep.  121;  52  L.  ed.  230 246 

Atlantic  &  Pacific  Tel.  Co.  v.  Philadelphia,  190  U.  S.  160;  23 

Sup.  Ct.  Rep.  817;  47  L.  ed.  995 363 

Auffmordt  v.  Hedden,  137  U.  S.  310;  11  Sup.  Ct.  Rep.  103;  34 

L.  ed.  674.  .  227 


TABLE  OF  CASES  xxi 

,  Page 
Austin  v. Tennessee,  179  U.  S.  343;  21  Sup.  Ct.  Rep.  132;  45  L. 

ed.  224 239 

Ayers,  In  re,  123  U.  S.  443;  8  Sup.  Ct.  Rep.  164;  31  L.  ed.  216. .  458 

• 

B 

Bailey  v.  Alabama,  219  U.  S.  219;  31  Sup.  Ct.  Rep.  145;  55  L. 

ed.  191 331 

Baiz,  Ex  parte,  135  U.  S.  403;  10  Sup.  Ct.  Rep.  854;  34  L.  ed.  222  436 

Baker  v.  Portland,  5  Sawyer,  566 172 

Bank  v.  Nebeker,  167  U.  S.  196;  17  Sup.  Ct.  Rep.  766;  42  L.  ed. 

134 203 

Bank  v.  Supervisors,  7  Wall.  26;  19  L.  ed.  60 374 

Bank  of  Commerce  v.  Commissioners,  2  Black,  620;  17  L.  ed. 

451 374 

Bank  of  Kentucky  v.  Wister,  2  Pet.  318;  7  L.  ed.  437 457 

Bank  of  United  States  v.  Deveaux,  5  Cr.  61;  3  L.  ed.  38 412 

Bank  Tax  Case,  2  Wall.  200;  17  L.  ed.  793 374 

Banks  v.  The  Mayor,  7  Wall.  16;  19  L.  ed.  57 374 

Barbier  v.  Connolly,  113  U.  S.  27;  5  Sup.  Ct.  Rep.  357;  28  L.  ed. 

923 350 

Barren  v.  Baltimore,  7  Pet.  243;  8  L.  ed.  672 346 

Barren  v.  Burnside,  121  U.  S.  186;  7  Sup.  Ct.  Rep.  931;  30  L. 

ed.  915 429 

Bates  &  Guild  Co.  v.  Payne,  194  U.  S.  106;  24  Sup.  Ct.  Rep.  595; 

48  L.  ed.  894 541 

Bauman  v.  Ross,  167  U.  S.  548;  17  Sup.  Ct.  Rep.  966;  42  L.  ed. 

270 382,  385 

Belfast,  The,  7  Wall.  624;  19  L.  ed.  266 463 

Belknap  v.  Schild,  161  U.  S.  10;  16  Sup.  Ct.  Rep.  443;  40  L.  ed. 

599 460 

Bell  v.  Bell,  181  U.  S.  175;  21  Sup.  Ct.  Rep.  551;  45  L.  ed.  804. .  80 
Bell's  Gap  R.  R.  Co.  v.  Pennsylvania,  134  U.  S.  232;  10  Sup.  Ct. 

Rep.  533;  33  L.  ed.  892 217,  354 

Benner  v.  Porter,  9  How.  235;  13  L.  ed.  119 129 

Bertram  v.  Robertson,  122  U.  S.  116;  7  Sup.  Ct.  Rep.  1115; 

30  L.  ed.  1118 168 

Billings  v.  Illinois,  188  U.  S.  97;  23  Sup.  Ct.  Rep.  272;  47  L.  ed. 

400 219 

Binns  v.  United  States,  194  U.  S.  486;  24  Sup.  Ct.  Rep.  816;  48 

L.  ed.  1087. .  .   149 


xxii  TABLE  OF  CASES 

Page 
Blackstone  v.  Miller,  188  U.  S.  189;  23  Sup.  Ct.  Rep.  277;  47  L. 

ed.  439 394,  395 

Blake  v.  McClung,  172  U.  S.  239;  19  Sup.  Ct.  Rep.  165;  43  L.  ed. 

432 84,  86 

Bollman,  Ex  parte,  4  Cr.  75;  2  L.  ed.  554 :. .  .323,  446,  518 

Boln  v.  Nebraska,  176  U.  S.  83 ;  20  Sup.  Ct.  Rep.  287 ;  44  L.  ed.  382    94 

Bonaparte  v.  Tax  Court,  104  U.  S.  592;  26  L.  ed.  845 80 

Bowman  v.  Chicago  &  Northwestern  R.  R.  Co.,  125  U.  S.  465; 

8  Sup.  Ct.  Rep.  689;  31  L.  ed.  700 .. .  .241,  248,  249 

Boyd  v.  Nebraska,  143  U.  S.  135;  12  Sup.  Ct.  Rep.  375;  36  L. 

ed.  103 64,  105,  150 

Boyd  v.  United  States,  116  U.  S.  616;  6  Sup.  Ct.  Rep.  524;  29 

L.  ed.  746 320 

Boyle  v.  Zacharie,  6  Pet.  635;  8  L.  ed.  527 443 

Boynton  v.  Blaine,  139  U.  S.  306;  11  Sup.  Ct.  Rep.  607;  35  L. 

ed.  183 436 

Braceville  Coal  Co.  v.  People,  147  111.  66 '  340 

Bradley  v.  Fisher,  13  Wall.  335;  20  L.  ed.  646 546 

Brennan  v.  Titusville,  153  U.  S.  289;  14  Sup.  Ct.  Rep.  829;  38 

L.  ed.  719 256 

Briscoe  v.  Bank  of  Kentucky,  11  Pet.  257;  9  L.  ed.  709 348,  457 

Bristol  v.  Washington  Co.,  177  U.  S.  133;  20  Sup.  Ct.  Rep.  585; 

44  L.  ed.  701 393 

Bronson  v.  Kinzie  et  al.,  1  How.  311;  11  L.  ed.  143 357 

Brown  v.  Houston,  114  U.  S.  622;  5  Sup.  Ct.  Rep.  1091;  29  L. 

ed.  257 258,  268,  291 

v.  Maryland,  12  Wh.  419;  6  L.  ed.  678.  .221,  237,  239,  240, 

255,  256,  289 
v.  New  Jersey,  175  U.  S.  172;  20  Sup.  Ct.  Rep.  77;  44  L.  ed. 

119 336 

v.  United  States,  8  Cr.  110;  3  L.  ed.  504 307,  504 

v.  Walker,  161  U.  S.  591;  16  Sup.  Ct.  Rep.  644;  40  L.  ed. 

819 319,  320,  484 

Buck  v.  Beach,  206  U.  S.  392;  27  Sup.  Ct.  Rep.  712;  51  L.  ed. 

1106 394 

Burgess  v.  Seligman,  107  U.  S.  20;  2  Sup.  Ct.  Rep.  10;  27  L. 

ed.  359 366 

Burton  v.  U.  S.,  202  U.  S.  344;  26  Sup.  Ct.  Rep.  688;  50  L.  ed. 

1057 486 

Butler  v.  Goreley,  146  U.  S.  303;  13  Sup.  Ct.  Rep.  84;  36  L.  ed. 
981.  .  .   297 


TABLE  OF  CASES  xxiii 

Page 

Butler  v.  Pennsylvania,  10  How.  402;  13  L.  ed.  472 63,  358 

Buttfield  v.  Stranahan,  192  U.  S.  470;  24  Sup.  Ct.  Rep.  349;  48 
L.  ed.  525 291,  534,  549 

C 

Calder  v.  Bull,  3  Ball.  386;  1  L.  ed.  648 19,  311,  521 

Caldwell  v.  North  Carolina,  187  U.  S.  622;  23  Sup.  Ct.  Rep.  229; 

47  L.  ed.  336 256 

California  v.  Central  Pacific  R.  R.  Co.,  127  U.  S.  1;  8  Sup.  Ct. 

Rep.  1073;  32  L.  ed.  150 287,  300,  372,  377 

Callan  v.  Wilson,  127  U.  S.  450;  8  Sup.  Ct.  Rep.  1301;  32  L.  ed. 

223 144,  313,  314 

Campbell  v.  California,  200  U.  S.  87;  26  Sup.  Ct.  Rep.  182;  50 

L.  ed.  382 219 

Capital  Traction  Company  v.  Hof,  174  U.  S.  1 ;  19  Sup.  Ct.  Rep. 

580;  43  L.  ed.  873 131,  313,  325 

Carlisle  v.  United  States,  16  Wall.  147;  21  L.  ed.  426 322 

Central  Land  Co.  v.  Laidley,  159  U.  S.  103;  16  Sup.  Ct.  Rep.  80; 

40  L.  ed.  91 339 

Chae  Chan  Ping  v.  United  States,  130  U.  S.  581 ;  9  Sup.  Ct.  Rep. 

623;  32  L.  ed.  1068 97,  165,  534 

Champion  v.  Ames,  188  U.  S.  321;  23  Sup.  Ct.  Rep.  321;  47  L. 

ed.  492 235,  268,  269,  288 

Chapman,  Re,  166  U.  S.  661;  17  Sup.  Ct.  Rep.  677;  41  L.  ed. 

1154 530 

Chappell  v.  United  States,  160  U.  S.  499;  16  Sup.  Ct.  Rep.  397; 

40  L.  ed.  510 381 

Charles  River  Bridge  Co.  v.  Warren  Bridge  Co.,  11  Pet.  420;  9 

L.  ed.  773 361 

Charming  Betsy,  The,  2  Cr.  64;  2  L.  ed.  208 440 

Cheatham  v.  United  States,  92  U.  S.  85;  23  L.  ed.  561 228 

Chemung  Canal  Bank  v.  Lowery,  93  U.  S.  72;  23  L.  ed.  806.  .  .  84 

Cherokee  Nation,  The,  v.  Georgia,  5  Pet.  1;  8  L.  ed.  25 113,  454 

Cherokee  Nation  v.  Hitchcock,  187  U.  S.  294;  23  Sup.  Ct.  Rep. 

115;  47  L.  ed.  183 116 

Cherokee  Nation  v.  Southern  Kansas  Ry.  Co.,  135  U.  S.  641;  10 

Sup.  Ct.  Rep.  965;  34  L.  ed.  295 116 

Cherokee  Tobacco  Case,  11  Wall.  616;  20  L.  ed.  227 166,  169 

Chicago,  B.  &  Q.  Ry.  Co.  v.  Chicago,  166  U.  S.  226;  17  Sup.  Ct. 

Rep.  581 ;  41  L.  ed.  979 339 


xxiv  TABLE  OF  CASES 

Page 
Chicago  Theological  Seminary  v.  Illinois,  188  U.  S.  662;  23  Sup. 

Ct.  Rep.  386;  47  L.  ed.  641 363 

Chinese  Exclusion  Cases,  130  U.  S.  581;  9  Sup.  Ct.  Rep.  623;  32 

L.  ed.  1068 156 

Chin  Yow  v.  United  States,  208  U.  S.  8;  28  Sup.  Ct.  Rep.  201 ;  52 

L.  ed.  369 !98,  538 

Chirac  v.  Chirac,  2  Wh.  259;  4  L.  ed.  234 171,  294 

Chisholm  v.  Georgia,  2  Dall.  419;  1  L.  ed.  440 19,  453,  455 

Civil  Rights  Cases,  109  U.  S.  3;  3  Sup.  Ct.  Rep.  18;  27  L.  ed. 

835 66,  73,  330,  331 

Claflin  v.  Houseman,  93  U.  S.  130;  23  L.  ed.  833 77,  416 

Clarke,  Ex  parte,  100  U.  S.  399;  25  L.  ed.  715 193 

Clinton  v.  Englebrecht,  13  Wall.  434;  20  L.  ed.  659 396 

Clyatt  v.  United  States,  197  U.  S.  207;  25  Sup.  Ct.  Rep.  429;  49 

L.  ed.  726 330 

Coe  v.  Errol,  116  U.  S.  517;  6  Sup.  Ct.  Rep.  475;  29  L.  ed.  715 

222,  236,  258,  280,  395 
Cohens  v.  Virginia,  6  Wh.  264;  5  L.  ed.  257.  .21,  53,  131,  132, 

405,  457 

Coleman  v.  Tennessee,  97  U.  S.  509;  24  L.  ed.  1118 496,  498 

Collector  v.  Day,  11  Wall.  113;  20  L.  ed.  122 378 

Collins  v.  New  Hampshire,  171  U.  S.  30;  18  Sup.  Ct.  Rep.  768; 

43  L.  ed.  60 251 

Comegys  v.  Vasse,  1  Pet.  193;  7  L.  ed.  108 533 

Compagnie  Francaise,  etc.,  v.  State  Board  of  Health  of  Louis- 
iana, 186  U.  S.  380;  22  Sup.  Ct.  Rep.  811;  46  L.  ed.  1209. . .  247 
Connolly  v.  Union  Sewer  Pipe  Co.,  184  U.  S.  540;  22  Sup.  Ct. 

Rep.  431;  46  L.  ed.  679 285,  354 

Continental  Wall  Paper  Co.  v.  Voight,  212  U.  S.  515;  29  Sup.  Ct. 

Rep.  280;  53  L.  ed.  486 285 

Cook  v.  Marshall,  196  U.  S.  261;  25  Sup.  Ct.  Rep.  233;  49  L.  ed. 

471. 239 

Cooley  v.  Philadelphia  Port  Wardens,  12  How.  299;  13  L.  ed. 

996 v 240 

Cooper,  Ex  parte,  143  U.  S.  472;  12  Sup.  Ct.  Rep.  453;  36  L.  ed. 

232 129,  435,  437 

Cope  v.  Vallette  Dry  Dock  Co.,  119  U.  S.  625;  7  Sup.  Ct.  Rep. 

336;  30  L.  ed.  501 463 

Corfield  v.  Coryell,  4  Wash.  C.  C.  371 84 

Cornell  v.  Coyne,  192  U.  S.  418;  24  Sup.  Ct.  Rep.  383;  48  L.  ed. 

504.  .  .  222 


TABLE  OF  CASES  xxv 

Page 
Corry  v.  Baltimore,  196  U.  S.  466;  25  Sup.  Ct.  Rep.  297;  49  L. 

ed.  556 387 

Counselman  v.  Hitchcock,  142  U.  S.  547;  12  Sup.  Ct.  Rep.  195; 

35  L.  ed.  1110 1 320 

Covington  &  Cincinnati  Bridge  Co.  v.  Kentucky,  154  U.  S.  204; 

14  Sup.  Ct.  Rep.  1087;  38  L.  ed.  962 241,  265 

Craig  v.  Missouri,  4  Pet.  410;  7  L.  ed.  903 23,  347,  452 

Crandall  v.  Nevada,  6  Wall.  35;  18  L.  ed.  745 70,  258 

Cross  v.  Harrison,  16  How.  164;  14  L.  ed.  889 127,  138 

Crown  Cork  &  Seal  Co.  v.  Maryland,  87  Md.  687 372 

Crutcher  v.  Kentucky,  141  U.  S.  47;  11  Sup.  Ct.  Rep.  851;  35  L. 

ed.  649 252 

Cummings  v.  Missouri,  4  Wall.  277;  18  L.  ed.  356 309 

Cunningham  v.  Macon  &  B.  Ry.  Co.,  109  U.  S.  446;  3  Sup.  Ct. 

Rep.  292;  27  L.  ed.  992 458,  460 


D 

Daniel  Ball,  The,  10  Wall.  557;  19  L.  ed.  999 290,  462 

Darnell  &  Son  Co.  v.  Memphis,  208  U.  S.  113;  28  Sup.  Ct.  Rep. 

247;  52  L.  ed.  413 255 

Darrington  v.  Bank  of  Alabama,  13  How.  12;  14  L.  ed.  30 349 

Dartmouth  College  v.  Woodward,  4  Wh.  518;  4  L.  ed.  629.  .23, 

43,  121,  360 

Davidson  v.  New  Orleans,  96  U.  S.  97;  24  L.  ed.  616 214,  337 

Davis  v.  Beason,  133  U.  S.  333;  10  Sup.  Ct.  Rep.  299;  33  L.  ed. 

637 325 

Davis  v.  Massachusetts,  167  U.  S.  43;  17  Sup.  Ct,  Rep.  731;  42 

L.  ed.  71 539 

Debs,  Re,  158  U.  S.  564;  15  Sup.  Ct.  Rep.  900;  39  L.  ed.  1092 

27,  43,  74,  304,  313,  502 
DeGeofroy  v.  Riggs,  133  U.  S.  258;  10  Sup.  Ct.  Rep.  295;  33  L. 

ed.  642 130,  169,  171 

Delamater  v.  South  Dakota,  205  U.  S.  93;  27  Sup.  Ct.  Rep.  447; 

51  L.  ed.  724 250,  252 

Delaware,  L.  &  W.  R,  R.  Co.  v.  Pennsylvania,  198  U.  S.  341;  25 

Sup.  Ct.  Rep.  669;  49  L.  ed.  1077 '. 389 

De  Lima  v.  Bidwell,  182  U.  S.  1;  21  Sup.  Ct.  Rep.  743;  45  L.  ed. 

1041.  . 127,  134,  137,  138 

Dennick  v.  Central  R.  R.  Co.,  103  U.  S.  11 ;  26  L.  ed.  439 79 


xxvi  TABLE  OF  CASES 

Page 
Denny  v.  Bennett,  128  U.  S.  489;  9  Sup.  Ct.  Rep.  134;  32  L.ed. 

491 2% 

De  Saussure  v.  Gaillard,  127  U.  S.  216;  8  Sup.  Ct.  Rep.  1053;  32 

L.  ed.  125 404 

Dewey  v.  City  of  Des  Moines,  173  U.  S.  193;  19  Sup.  Ct.  Rep. 

379;  43  L.  ed.  665 387 

Diamond  Match  Co.  v.  Ontonagon,  188  U.  S.  82;  23  Sup.  Ct. 

Rep.  266;  47  L.  ed.  394 258 

Diamond  Rings,  The,  183  U.  S.  176;  22  Sup.  Ct.  Rep.  59;  46 

L.  ed.  138 139 

Dickerman  v.  Northern  Trust  Co.,  176  U.  S.  181;  20  Sup.  Ct. 

Rep.  311;  44  L.  ed.  423 414 

Dietzsch  v.  Huidekoper,  103  U.  S.  494;  26  L.  ed.  497 427 

Divina  Pastora,  The,  4  Wh.  52;  4  L.  ed.  512 435 

Dobbins  v.  Commissioners,  16  Pet.  435;  10  L.  ed.  1022 373 

Doe  v.  Braden,  16  How.  635;  14  L.  ed.  1090 170,  436 

Dooley  v.  United  States,  182  U.  S.  222;  21  Sup.  Ct.  Rep.  762;  45 

L.  ed.  1074 134,  136,  138,  507,  544 

Dooley  v.  United  States,  183  U.  S.  151;  22  Sup.  Ct.  Rep.  62;  43 

L.  ed.  128 149,  221 

Dorr  v.  United  States,  195  U.  S.  138;  24  Sup.  Ct.  Rep.  808;  49 

L.  ed.  128 148 

Downes  v.  Bidwell,  182  U.  S.  244;  21  Sup.  Ct.  Rep.  770;  45  L.  ed. 

1088 145,  169,  308 

Downs  v.  United  States,  187  U.  S.  496;  23  Sup.  Ct.  Rep.  222;  47 

L.  ed.  275 220 

Doyle  v.  Continental  Insurance  Co.,  94  U.  S.  535;  24  L.  ed.  148  429 
Dred  Scott  v.  Sandford,  19  How.  393;  15  L.  ed.  691 .  .30, 100, 127, 144 
Drury  v.  Lewis,  200  U.  S.  1;  26  Sup.  Ct.  Rep.  229;  50  L.  ed.  343  425 


£ 

Edwards  v.  Kearzey,  96  U.  S.  595;  24  L.  ed.  793 296 

Edye  v.  Robertson,  112  U.  S.  580;  5  Sup.  Ct.  Rep.  247;  28  L. 

ed.  798 165 

Ekiu  v.  United  States,  142  U.  S.  651;  12  Sup.  Ct.  Rep.  336;  35  L. 

ed.  1146. . .  .' 98,  156,  488,  535 

Ela  v.  Smith,  5  Gray  (Mass.),  121 511 

Elk  v.  Wilkins,  112  U.  S.  94;  5  Sup.  Ct.  Rep.  41;  28  L.  edi  643. .  115 
Elmendorf  v.  Taylor,  10  Wh.  152;  6  L.  ed.  289 443 


TABLE  OF  CASES  xxvii 

Page 
El  Paso  &  Northeastern  Ry.  Co.  v.  Gutierrez,  215  U.  S.  87;  30 

Sup.  Ct.  Rep.  21;  54  L.  ed.  106 277 

Embry  v.  Palmer,  107  U.  S.  3;  2  Sup.  Ct.  Rep.  25;  27  L.  ed.  346  '77 
Emert  v.  Missouri,  156  U.  S.  296;  15  Sup.  Ct.  Rep.  367;  39  L.  ed. 

430 256 

Escanaba  v.  Lake  Michigan  Transportation  Co.,  107  U.  S.  678; 

2  Sup.  Ct.  Rep.  185;  27  L.  ed.  442 94 

Exchange,  The,  7  Cr.  116;  3  L.  ed.  287 95 

Experiment,  The,  8  Wh.  261;  5  L.  ed.  612 307 


F 

Fair,  Re,  100  Fed.  Rep.  149 544 

Fairbanks  v.  United  States,  181  U.  S.  283;  21  Sup.  Ct.  Rep.  648; 

45  L.  ed.  862 33,  222 

Fairfax  v.  Hunter,  7  Cr.  603;  3  L.  ed.  453 170,  171 

Fall  v.  Easton,  215  U.  S.  1;  30  Sup.  Ct.  Rep.  3;  54  L.  ed.  1 79 

Fargo  v.  Hart,  193  U.  S.  490;  24  Sup.  Ct.  Rep.  498;  48  L.  ed.  761  260 
Fauntleroy  v.  Lum,  210  U.  S.  230;  28  Sup.  Ct.  Rep.  641;  52  L.  ed. 

1039 80 

Ficklen  v.  Shelby  Co.,  145  U.  S.  1 ;  12  Sup.  Ct.  Rep.  810;  36  L.  ed. 

601 256 

Field  v.  Clark,  143  U.  S.  649;  12  Sup.  Ct.  Rep.  495;  36  L.  ed.  294 

163,  200,  203,  220,  549 
Fitts  v.  McGhee,  172  U.  S.  516;  19  Sup.  Ct.  Rep.  269;  43  L.  ed. 

535 459 

Flaherty,  Re,  105  Cal.  558 539 

Fleming  v.  Page,  9  How.  603;  13  L.  ed.  276 123,  134,  137 

Fletcher  v.  Peck,  6  Cr.  87;  3  L.  ed.  162 20,  110,  360 

Flint  v.  Stone  Tracy  Co.,  220  U.  S.  107;  31  Sup.  Ct.  Rep.  342; 

55  L.  ed.  389 203,  226,  289,  372 

Florida  v.  Anderson,  91  U.  S.  667;  23  L.  ed.  290 458 

Florida  v.  Georgia,  11  How.  293;  13  L.  ed.  702 453 

Fong  Yue  Ting  v.  United  States,  149  U.  S.  698;  13  Sup.  Ct.  Rep. 

1016;  37  L.  ed.  905 53,  55,  98,  156,  335,  535 

Fontain  v.  Ravenel,  17  How.  369;  15  L.  ed.  80 438 

Ford  v.  Surget,  97  U.  S.  594;  24  L.  ed.  1018 513 

Fort  Leaven  worth  R.  R.  Co.  v.  Lowe,  114  U.  S.  525;  5  Sup.  Ct. 

Rep.  995;  29  L.  ed.  264 133,  172 

Foster  v.  Kansas,  112  U.  S.  205;  5  Sup.  Ct.  Rep.  8;  28  L.  ed.  696    64 


xxviii  TABLE  OF  CASES 

Pago 

Foster  v.  Neilson,  2  Pet.  253;  7  L.  ed.  415 166,  435 

Fox  v,  Ohio,  5  How.  410;  12  L.  ed.  213 299,  316 

French  v.  Barber  Asphalt  Paving  Co.,  181  U.  S.  324;  21  Sup.  Ct. 
Rep.  625;  45  L.  ed.  879 386 


G 

Galveston,  H.  &  S.  A.  R.  R.  Co.  v.  Texas,  210  U.  S.  217;  28  Sup. 

Ct.  Rep.  638;  52  L.  ed.  1031 261 

Garland,  Ex  parte,  4  Wall.  333;  18  L.  ed.  366 310,  484 

Garnett,  Ex  parte,  148  U.  S.  1;  11  Sup.  Ct.  Rep.  840;  35  L.  ed. 

631 466 

Geer  v.  Connecticut,  161  U.  S.  519;  16  Sup.  Ct.  Rep.  600;  40 

L.  ed.  793 248 

Gelpcke  v.  Dubuque,  1  Wall.  175;  17  L.  ed.  520 17,  366 

Genesee  Chief,  The,  12  How.  443;  13  L.  ed.  1058 462 

Georgia  v.  Stanton,  6  Wall.  50;  18  L.  ed.  721 435,  451,  542 

Georgia  v.  Tennessee  Copper  Co.,  206  U.  S.  230;  27  Sup.  Ct. 

Rep.  618;  51  L.  ed.  1038 450 

Gibbons  v.  Ogden,  9  Wh.  1 ;  6  L.  ed.  23 .  .  .-  .23,  231,  233,  239,  247,  268 
Gibson  v.  Mississippi,  162  U.  S.  565;  16  Sup.  Ct.  Rep.  904;  40 

L.  ed.  1075 352 

Giles  v.  Harris,  189  U.  S.  475;  23  Sup.  Ct.  Rep.  639;  47  L.  ed. 

909 195 

Giles  v.  Teasley,  193  U.  S.  146;  24  Sup.  Ct.  Rep.  359;  48  L.  ed. 

655 195 

Giozza  v.  Tiernan,  148  U.  S.  657;  13  Sup.  Ct.  Rep.  721;  37  L. 

ed.  599 334 

Glide,  The,  167  U.  S.  606;  17  Sup.  Ct.  Rep.  930;  42  L.  ed.  296.  465 
Gloucester  Ferry  Co.  v.  Pennsylvania,  114  U.  S.  196;  5  Sup.  Ct. 

Rep.  826;  29  L.  ed.  158 263 

Goetze  v.  United  States,  182  U.  S.  221;  21  Sup.  Ct.  Rep.  742;  45 

L.  ed.  1065 149 

Gold  Washing  &  Water  Co.  v.  Keyes,  96  U.  S.  199;  24  L.  ed.  656  414 
Gompers  v.  Buck  Stove  &  Range  Co.,  221  U.  S.  418;  31  Sup.  Ct. 

Rep.  492;  55  L.  ed.  797 529 

Gonzales  v.  Williams,  192  U.  S.  1 ;  24  Sup.  Ct.  Rep.  171 ;  48  L.  ed.  • 

317 153,  536 

Gordon  v.  United  States,  2  Wall.  561;  17  L.  ed.  921 530 

Grafton  v.  United  States,  206  U.  S.  333;  27  Sup.  Ct.  Rep.  749; 

51  L.  ed.  1084.  .  317 


TABLE  OF  CASES  xxix 

Page 

Graham  v.  Stucken,  4  Blatchf.  50 400 

Great  Southern  Fireproof  Hotel  Co.  v.  Jones,  193  U.  S.  532;  24 

Sup.  Ct.  Rep.  576;  48  L.  ed.  778 367 

Green  v.  Biddle,  8  Wh.  1;  5  L.  ed.  547 23 

Green  v.  Neal,  6  Pet.  291;  8  L.  ed.  402 444 

Gulf,  etc.,  Ry.  Co.  v.  Ellis,  165  U.  S.  150;  17  Sup.  Ct.  Rep.  255; 

41  L.  ed.  666 354 

Guy  v.  Baltimore,  100  U.  S.  434;  25  L.  ed.  743 255 

H 

Haddock  v.  Haddock,  201  U.  S.  562;  26  Sup.  Ct.  Rep.  525;  50  L. 

ed.  867 81 

Hagar  v.  Reclamation  District,  111  U.  S.  701;  4  Sup.  Ct.  Rep. 

663;  28  L.  ed.  569 226,  334 

Hagood  v.  Southern,  117  U.  S.  52;  6  Sup.  Ct.  Rep.  608;  29  L.  ed. 

805 458 

Hale  v.  Henkel,  201  U.  S.  43;  26  Sup.  Ct.  Rep.  370;  50  L.  ed.  652 

319,  320,  321 

Hallowell  v.  United  States,  31  Sup.  Ct.  Rep.  587 116 

Hamilton,  The,  207  U.  S.  398;  28  Sup.  Ct.  Rep.  133;  52  L.  ed. 

264 465 

Hanley  v.  Kansas  City  S.  Ry.  Co.,  187  U.  S.  617;  23  Sup.  Ct. 

Rep.  214;  47  L.  ed.  333 265 

Hanover  Nat.  Bank  v.  Moyses,  186  U.  S.  181;  22  Sup.  Ct.  Rep. 

857;  46  L.  ed.  1113 296,  297 

Hans  v.  Louisiana,  134  U.  S.  1;  10  Sup.  Ct.  Rep.  504;  33  L.  ed. 

842 456,  458 

Harman  v.  Chicago,  147  U.  S.  396;  13  Sup.  Ct.  Rep.  306;  37  L. 

ed.  216 372 

Harwood  v.  Wentworth,  162  U.  S.  547;  16  Sup.  Ct.  Rep.  890;  40 

L.  ed.  1069 203 

Hauenstein  v.  Lynham,  100  U.  S.  483;  25  L.  ed.  628 171 

Haver  v.  Haker,  9  Wall.  32;  19  L.  ed.  571 160 

Hawaii  v.  Mankichi,  190  U.  S.  197;  23  Sup.  Ct.  Rep.  787;  47  L. 

ed.  1016 146,  315 

Hayburn's  Case,  2  Ball.  409;  1  L.  ed.  436 530 

IToad  Money  Cases,  112  U.  S.  580;  5  Sup.  Ct.  Rep.  247;  28  L. 

ed.  798 211,  218 

Henderson  Bridge  Co.  v.  Kentucky,  166  U.  S.  150;  17  Sup.  Ct. 

Rep.  532;  41  L.  ed.  953 259 


xxx  TABLE  OF  CASES 

Page 
Henderson  v.  Mayor  of  New  York,  92  U.  S.  259;  23  L.  ed.  543 

244,  258 

Hendricks  v.  Gonzales,  67  Fed.  Rep.  351 545 

Hennen,  Ex  parte,  13  Pet.  230;  10  L.  ed.  138.  .  .  ; 489 

Hennington  v.  Georgia,  163  U.  S.  299;  16  Sup.  Ct.  Rep.  1086;  41 

L.  ed.  166 243 

Hepburn  v.  Ellzey,  2  Cr.  445;  2  L.  ed.  332 102,  130,  412,  454 

Hepburn  v.  Griswold,  8  Wall.  603;  19  L.  ed.  513 229,  339,  345 

Heymann  v.  Southern  Ry.  Co.,  203  U.  S.  270;  27  Sup.  Ct.  Rep. 

104;  51  L.  ed.  178 250 

Hibernia  Savings  &  Loan  Society  v.  San  Francisco,  200  U.  S. 

310;  26  Sup.  Ct.  Rep.  265;  50  L.  ed.  495 376 

Hilton  v.  Guyot,  159  U.  S.  113;  16  Sup.  Ct.  Rep.  139;  40  L.  ed. 

95 440 

Hilton  v.  Merritt,  110  U.  S.  97;  3  Sup.  Ct.  Rep.  548;  28  L.  ed.  83 

227,  534 

Hine  v.  Trevor,  4  Wall.  555;  18  L.  ed.  451 465 

Hodges  v.  United  States,  203  U.  S.  1;  27  Sup.  Ct.  Rep.  6;  51  L. 

ed.  65 330 

Hoff,  Re,  197  U.  S.  488;  25  Sup.  Ct.  Rep.  506;  49  L.  ed.  848.  ..    116 

Hollingsworth  v.  Virginia,  3  Dall.  378;  1  L.  ed.  644 178,  456 

Holmes  v.  Jennison,  14  Pet.  540;  10  L.  ed.  579 88 

Home  Insurance  Co.  v.  Morse,  20  Wall.  445;  22  L.  ed.  365 428 

Home  Insurance  Co.  v.  New  York,  134  U.  S.  594;  10  Sup.  Ct. 

Rep.  593;  33  L.  ed.  1025 375 

Home  Savings  Bank  v.  Des  Moines,  205  U.  S.  503;  27  Sup.  Ct. 

Rep.  571;  51  L.  ed.  901 374 

Hopkins  v.  United  States,  171  U.  S.  578;  19  Sup.  Ct.  Rep.  40;  43 

L.ed.  290 281 

Hopkirk  v.  Bell,  3  Cr.  454;  2  L.  ed.  497 .' 171 

Hopper  v.  California,  155  U.  S.  648;  15  Sup.  Ct.  Rep.  207;  39  L. 

ed.  297 234 

Houston  v.  Moore,  5  Wh.  1;  5  L.  ed.  19 433,  501 

Houston,  etc.,  Ry.  Co.  v.  Mayes,  201  U.  S.  321;  26  Sup.  Ct.  Rep. 

491;  50  L.  ed.  772 243,  244 

Houston,  etc.,  Ry.  Co.  v.  Texas,  177  U.  S.  66;  20  Sup.  Ct.  Rep. 

545;  44  L.  ed.  673 349 

Howard  v.  Illinois  Central  R.  R.  Co.,  207  U.  S.  463;  28  Sup.  Ct. 

Rep.  141;  52  L.  ed.  297 30,  274,  276 

Hurtado  v.  California,  110  U.  S.  516;  4  Sup.  Ct.  Rep.  Ill;  28  L. 

ed.  232 335,  339 


TABLE  OF  CASES  xxxi 

Page 
Hyatt  v.  New  York,  188  U.  S.  691;  23  Sup.  Ct.  Rep.  456;  47  L. 

ed.  657 91 

Hyde  v.  Stone,  20  How.  170;  15  L.  ed.  874 431 

Hylton  v.  United  States,  3  Dall.  171;  1  L.  ed.  556 222 


I 

Illinois  Central  Ry.  Co.  v.  Decatur,  126  111.  92 383 

Illinois  Central  Ry.  Co.  v.  Illinois,  163  U.  S.  142;  16  Sup.  Ct. 

Rep.  1096;  41  L.  ed.  107 246 

Inglis  v.  Sailor's  Snug  Harbor,  3  Pet.  99;  7  L.  ed.  617 108 

International  Postal  Supply  Co.  v.  Bruce,  194  U.  S.  601;  24  Sup. 

Ct.  Rep.  820;  48  L.  ed.  1134 460 

International  Text  Book  Co.  v.  Pigg,  217  U.  S.  91;  30  Sup.  Ct. 

Rep.  431;  54  L.  ed.  678 236 

Interstate  Commerce  Commission  v.  Brimson,  154  U.  S.  447;  14 

Sup.  Ct.  Rep.  1125;  38  L.  ed.  1047 31,  531 

Interstate  Commerce  Com.  v.  C.,  R.  I.  &  P.  R.  Co.,  218  U.  S.  88; 

30  Sup.  Ct.  Rep.  651;  54  L.  ed.  946 551 

Interstate  Commerce  Com.  v.  N.  P.  R.  Co.,  216  U.  S.  538;  30 

Sup.  Ct.  Rep.  417;  54  L.  ed.  608 550 


J 

Jackson,  Ex  parte,  96  U.  S.  727;  24  L.  ed.  877 300,  320,  327 

James  v.  Bowman,  190  U.  S.  127;  23  Sup.  Ct.  Rep.  678;  47  L. 

ed.  979 30,  74,  194 

Jecker  v.  Montgomery,  13  How.  498;  14  L.  ed.  240 138 

Jefferson  Branch  Bank  v.  Skelly,  1  Blackf.  436;  17  L.  ed. 

173 364 

Johnson  v.  M'Intosh,  8  Wh.  543;  5  L.  ed.  681 110 

Johnson  v.  Risk,  137  U.  S.  300;  11  Sup.  Ct.  Rep.  Ill;  34  L.  ed. 

683 404 

Jones  v.  Montague,  194  U.  S.  147;  24  Sup.  Ct,  Rep.  611;  48  L. 

ed.  913 195 

Jones  v.  United  States,  137  U.  S.  202;  11  Sup.  Ct.  Rep.  80;  34  L. 

ed.  691 124,  435,  481 

Juillard  v.  Greenman,  110  U.  S.  421;  4  Sup.  Ct.  Rep.  122;  28  L. 

ed.  204.  .  .   229 


xxxii  TABLE  OF  CASES 

K 

Page 
Kansas  v.  Colorado,  206  U.  S.  46;  27  Sup.  Ct.  Rep.  655;  51  L. 

ed.  956 45,55 

Kansas  v.  Colorado,  185  U.  S.  125;  22  Sup.  Ct.  Rep.  552;  46  L. 

ed.  838 450 

Kansas  Indians,  5  Wall.  737;  18  L.  ed.  667 114 

Keim  v.  United  States,  177  U.  S.  290;  20  Sup.  Ct.  Rep.  574;  44 

L.  ed.  774 490 

Kelley  v.  Rhoads,  188  U.  S.  1;  23  Sup.  Ct.  Rep.  259;  47  L.  ed. 

359 258 

Kemmler,  Ex  parte,  136  U.  S.  436;  10  Sup.  Ct.  Rep.  930;  34  L. 

ed.  519 321 

Kendall  v.  Stokes,  3  How.  87;  11  L.  ed.  506 , 546 

Kendall  v.  United  States,  12  Pet.  524;  9  L.  ed.  1181 479,  542 

Kennard  v.  Louisiana,  92  U.  S.  480;  23  L.  ed.  478 64 

Kennett  v.  Chambers,  14  How.  38;  14  L.  ed.  316 435 

Kentucky  v.  Dennison,  24  How.  66;  16  L.  ed.  717 87,  488 

Keokuk,  etc.,  Bridge  Co.  v.  Illinois,  175  U.  S.  626;  20  Sup.  Ct. 

Rep.  205;  44  L.  ed.  299 259 

Kepner  v.  United  States,  195  U.  S.  100;  24  Sup.  Ct.  Rep.  797; 

49  L.  ed.  114 : 149,  317 

Kidd  v.  Pearson,  128  U.  S.  1;  9  Sup.  Ct.  Rep.  6;  32  L.  ed.  346. .  280 
Kilbourn  v.  Thompson,  103  U.  S.  168;  26  L.  ed.  377.  .183,  185, 

522,  529 
King  v.  Mullins,  171  U.  S.  404;  18  Sup.  Ct.  Rep.  925;  43  L.  ed. 

214 228 

Kirtland  v.  Hotchkiss,  100  U.  S.  491;  25  L.  ed.  558 393 

Knight  v.  United  States  Land  Association,  142  U.  S.  161;  12 

Sup.  Ct.  Rep.  258;  35  L.  ed.  974 481 

Knights  Templar  Indemnity  Co.  v.  Jarman,  187  U.  S.  197;  23 

Sup.  Ct.  Rep.  108;  47  L.  ed.  139 30 

Knowlton  v.  Moore,  178  U.  S.  41;  20  Sup.  Ct.  Rep.  747;  44  L. 

ed.  969 212,  219,  225 

Knox  v.  Lee,  12  Wall.  457;  20  L.  ed.  287 26,  31,  229,  345 

Knoxville  Water  Co.  v.  Knoxville,  200  U.  S.  22;  26  Sup.  Ct.  Rep. 

224;  50  L.  ed.  353 361 

Kohl  v.  United  States,  91  U.  S.  367;  23  L.  ed.  449 133,  287 

Kollock,  Ex  parte,  165  U.  S.  526;  17  Sup.  Ct.  Rep.  444;  41  L.  ed. 

813 />:>:* 

Kuhn-y.  Fairmont  Coal  Co.,  215  U.  S.  602;  30  Sup.  Ct.  Rep. 

140;  54  L.  ed.  228 445 


TABLE  OF  CASES  xxxiii 

L 

Page 
La  Abra  Silver  Mining  Co.  v.  United  States,  175  U.  S.  423;  20 

Sup.  Ct.  Rep.  168;  44  L.  ed.  223 204 

Lake  Shore,  etc.,  Ry.  Co.  v.  Ohio,  173  U.  S.  285;  19  Sup.  Ct. 

Rep.  465;  43  L.  ed.  702 243,  246,  264 

Lane  County  v.  Oregon,  7  Wall.  71;  19  L.  ed.  101 378 

Lange,  Ex  parte,  18  Wall.  163;  21  L.  ed.  872 317 

La  Ninfa,  The,  75  Fed.  Rep.  513 437 

Laramie  Co.  v.  Albany  Co.,  92  U.  S.  307;  23  L.  ed.  552 359 

Lascelles  v.  Georgia,  148  U.  S.  537;  13  Sup.  Ct,  Rep.  687;  37  L. 

ed.  549 90 

Late  Corporation  of  the  Church  of  Jesus  Christ  v.  United  States, 

136  U.  S.  1;  10  Sup.  Ct.  Rep.  792;  34  L.  ed.  478.  .55,  127,  128,  144 

Lattimer  v.  Poteet,  14  Pet.  4;  10  L.  ed.  328 170,  171 

Lefevre  v.  Detroit,  2  Mich.  586 383 

Legal  Tender  Cases,  12  Wall.  457;  20  L.  ed.  287 55 

Lehigh  Valley  R.  Co.  v.  Pennsylvania,  145  U.  S.  192;  12  Sup. 

Ct.  Rep.  806;  36  L.  ed.  672 266 

Lehigh  Water  Co.  v.  Easton,  121  U.  S.  388;  7  Sup.  Ct.  Rep.  916; 

30  L.  ed.  1059 364 

Leisy  v.  Hardin,  135  U.  S.  100;  10  Sup.  Ct.  Rep.  681;  34  L.  ed. 

128 237,  239,  248 

Leloup  v.  Mobile,  127  U.  S.  640;  8  Sup.  Ct,  Rep.  1383;  32  L.  ed. 

311 232,  254,  255 

Lem  Moon  Sing  v.  United  States,  158  U.  S.  538;  15  Sup.  Ct.  - 

Rep.  967;  39  L.  ed.  1082 98 

Lewis  v.  United  States,  146  U.  S.  370;  13  Sup.  Ct.  Rep.  136;  36  L. 

ed.  1011 315 

License  Cases,  5  How.  504;  12  L.  ed.  256 171,  240,  249,  258 

License  Tax  Cases,  5  Wall.  462;  18  L.  ed.  497 212 

Lithographic  Co.  v.  Sarony,  111  U.  S.  53;  4  Sup.  Ct.  Rep.  279; 

28  L.  ed.  349 33 

Little  v.  Barreme,  2  Cr.  170;  2  L.  ed.  243 495 

Loan  Association  v.  Topeka,  20  Wall.  655;  22  L.  ed.  455 215 

Lochner  v.  New  York,  198  U.  S.  45;  25  Sup.  Ct.  Rep.  539;  49 

L.  ed.  937 342 

Lockwood,  Re,  154  U.  S.  116;  14  Sup.  Ct.  Rep.  1082;  38  L.  ed. 

929 353 

Lockwood  v.  St.  Louis,  24  Mo.  20 382 

Loewe  v.  Lawler,  208  U.  S.  274;  28  Sup.  Ct.  Rep.  301;  52  L.  ed. 

488.  .  .   284 


xxxiv  TABLE  OF  CASES 

Page 
Logan  v.  United  States,  144  U.  S.  263;  12  Sup.  Ct.  Rep.  617;  36 

L.  ed.  429 74 

Lone  Wolf  v.  Hitchcock,  187  U.  S.  553;  23  Sup.  Ct.  Rep.  216;  47 

L.  ed.  299 .   lie 

Loney,  In  re,  134  U.  S.  372;  10  Sup.  Ct.  Rep.  384;  33  L.  ed. 

949 183 

Lottawanna,  The,  21  Wall.  558;  22  L.  ed.  654 ..440,  465 

Loughborough  v.  Blake,  5  Wh.  317;  5  L.  ed.  98 ".130,  144 

Louisiana  v.  Jumel,  107  U.  S.  711;  2  Sup.  Ct.  Rep.  128;  27  L'.  ed. 

448.  % 458 

v.  New  Orleans,  215  U.  S.  170;  30  Sup.  Ct.  Rep.  40;  54  L.  ed. 

144 360 

v.  Texas,  176  U.  S.  1;  20  Sup.  Ct.  Rep.  251;  44  L.  ed.  347.  .  449 
Louisville  &  Jeffersonville  Ferry  Co.  v.  Kentucky,  188  U.  S.  385; 

23  Sup.  Ct.  Rep.  463;  47  L.  ed.  513 388,  394 

Louisville  &  Nashville  R.  R.  Co.  v.  Barber  Asphalt  Paving  Co., 

197  U.  S.  430;  25  Sup.  Ct.  Rep.  466;  49  L.  ed.  819 386 

Louisville  &  Nashville  R.  R.  Co.  v.  Central  Stock  Yards  Co., 

212  U.  S.  132;  29  Sup.  Ct.  Rep.  246;  53  L.  ed.  441 246 

L.  &.  N.  Ry.  Co.  v.  Siler,  186  Fed.  176 265 

Louisville  R.  R.  Co.  v.  Railroad  Com.  of  Tennessee,  19  Fed. 

Rep.  679 263 

Luther  v.  Borden,  7  How.  1;  12  L.  ed.  581 62,  436 

Luxton  v.  North  River  Bridge  Co.,  153  U.  S.  525;  14  Sup.  Ct. 

Rep.  891;  38  L.  ed.  808 287 

Lynde  v.  Lynde,  181  U.  S.  183;  21  Sup.  Ct.  Rep.  555;  45  L.  ed. 

810.  .  81 


M 

McCardle,  Ex  parte,  7  Wall.  506;  19  L.  ed.  264 31,  401 

M'Clung  v.  Silliman,  6  Wh.  598;  5  L.  ed.  340 425 

McCray  v.  United  States,  195  U.  S.  27;  24  Sup.  Ct.  Rep.  769; 

49  L.  ed.  78 31,  211,  220 

McCready  v.  Virginia,  94  U.  S.  391;  24  L.  ed.  248 84 

McCulloch  v.  Maryland,  4  Wh.  316;  4  L.  ed.  579.  ..  .20,  51,  210,  369 
McCullough  v.  Virginia,  172  U.  S.  102;  19  Sup.  Ct.  Rep.  134; 

43  L.  ed.  382 365 

McGahey  v.  Virginia,  135  U.  S.  662;  10  Sup.  Ct.  Rep.  972;  34 

L.  ed.  304.  ...  365,  459 


TABLE  OF  CASES  xxxv 

Page 
M'llvaine  v.  Coxe,  2  Cr.  280;  2  L.  ed.  279;  4  Cr.  209;  2  L.  ed. 

598 108 

McKane  v.  Durston,  153  U.  S.  684;  14  Sup.  Ct.  Rep.  913;  38  L. 

ed.  867 336 

McKean,  Ex  parte,  3  Hughes  (U.  S.),  23 89 

McNeill  v.  Southern  Railway  Co.,  202  U.  S.  543;  26  Sup.  Ct, 

Rep.  722;  50  L.  ed.  1142 246,  264 

McPherson  v.  Blacker,  146  U.  S.  1;  13  Sup.  Ct.  Rep.  3;  36  L.  ed.    - 

869 471 

Machine  Co.  v.  Gage,  100  U.  S.  676;  25  L.  ed.  754 256 

Macon  v.  Patty,  57  Miss.  378 384 

Magoun  v.  Illinois  Trust  &  Savings  Bank,  170  U.  S.  283;  18  Sup. 

Ct.  Rep.  594;  42  L.  ed.  1037 219,  354 

Mahon  v.  Justice,  127  U.  S.  700;  8  Sup.  Ct.  Rep.  1204;  32  L.  ed. 

283 90 

Maine  v.  Grand  Trunk  R.  R.  Co.,  142  U.  S.  217;  12  Sup.  Ct. 

Rep.  121;  35  L.  ed.  994 261 

Manuel  v.  Wulff,  152  U.  S.  505;  14  Sup.  Ct.  Rep.  651;  38  L.  ed. 

532 105 

Marbury  v.  Madison,  1  Cr.  137;  2  L.  ed.  60.  .15,  30,  400,  434, 

487,  541,  542 
Marshall  v.  Holmes,  141  U.  S.  589;  12  Sup.  Ct.  Rep.  62;  35  L.  ed. 

870 431 

Martin  v.  District  of  Columbia,  205  U.  S.  135;  27  Sup.  Ct.  Rep. 

440;  51  L.  ed.  743.  , 386 

v.  Hunter's  Lessee,  1  Wh.  304;  4  L.  ed.  97 20,  405 

v.  Mott,  12  Wh.  19;  6  L.  ed.  537 436,  501 

v,  Snowden,  18  Gratt.  100 310 

Maxwell  v.  Dow,  176  U.  S.  581;  20  Sup.  Ct.  Rep.  448;  44  L.  ed. 

597 38,72 

May  &  Co.  v.  New  Orleans,  178  U.  S.  496;  20  Sup.  Ct.  Rep.  976; 

44  L.  ed.  1165 239 

Mercantile  Nat.  Bank  v.  New  York,  121  U.  S.  138;  7  Sup.  Ct. 

Rep.  826;  30  L.  ed.  895 379 

Maynard  v.  Hill,  125  U.  S.  190;  8  Sup.  Ct.  Rep.  723;  31  L.  ed. 

654 358 

Meriwether  v.  Garrett,  102  U.  S.  472;  26  L.  ed.  197 209 

Merritt  v.  Welsh,  104  U.  S.  694;  26  L.  ed.  896 552 

Merryman,  Ex  parte,  Campbell's  Reports,  246 55 

Metropolitan  Street  Ry.  Co.  v.  Tax  Commissioners,  199  U.  S. 

1;  25  Sup.  Ct.  Rep.  705;  50  L.  ed.  65 395 


xxxvi  TABLE  OF  CASES 

Page 

Miller  v.  United  States,  11  Wall.  268;  20  L.  ed.  135 504 

Milligan,  Ex  parte,  4  Wall.  2;  18  L.  ed.  281 498,  508,  514 

Minnesota  v.  Barber,  136  U.  S.  313;  10  Sup.  Ct.  Rep.  862;  34  L. 

ed.  455 247 

Minnesota  v.  Hitchcock,  185  U.  S.  373;  22  Sup.  Ct.  Rep.  650;  46 

L.  ed.  954 453,  460 

Minor  v.  Happersett,  21  Wall.  162;  22  L.  ed.  627 62,  72,  99,  189 

Mississippi  v.  Johnson,  4  Wall.  475;  18  L.  ed.  437 451,  453,  542 

Mississippi  Railroad  Commission  v.  Illinois  Central  R.  Co.,  203 

U.  S.  335;  27  Sup.  Ct.  Rep.  90;  51  L.  ed.  209 246 

Missouri  v.  Illinois,  180  U.  S.  208;  21  Sup.  Ct.  Rep.  331;  45  L. 

ed.  497 449 

Missouri  v.  Lewis,  101  U.  S.  22;  25  L.  ed.  989 354 

Missouri  Pacific  Ry.  Co.  v.  Humes,  115  U.  S.  512;  6  Sup.  Ct. 

Rep.  110;  29  L.  ed.  463 334 

v.  Larabee  Flour  Mills  Co.,  211  U.  S.  612;  29  Sup.  Ct.  Rep. 

214;  53  L.  ed.  352 245,  264 

v.  Mackey,  127  U.  S.  205;  8  Sup.  Ct.  Rep.  1161;  32  L.  ed. 

107 354 

Mitchell  v.  Harmony,  13  How.  115;  14  L.  ed.  75 514 

Mobile  v.  Watson,  116  U.  S.  289;  6  Sup.  Ct.  Rep.  398;  28  L.  ed. 

620 359 

Monongahela  Navigation  Co.  v.  United  States,  148  U.  S.  312;  13 

Sup.  Ct,  Rep.  622;  37  L.  ed.  463 287,  381 

Montague  v.  Lowry,  193  U.  S.  38;  24  Sup.  Ct.  Rep.  307;  48  L. 

ed.  608 '. " 283 

Montell,  The,  20  Wall.  430;  22  L.  ed.  391 463 

Moore  v.  Illinois,  14  How.  13;  14  L.  ed.  306 317 

Moran  v.  New  Orleans,  112  U.  S.  69;  5  Sup.  Ct.  Rep.  38;  28 

L.  ed.  653 372 

Morrill  v.  Jones,  106  U.  S.  466;  1  Sup.  Ct.  Rep.  423;  27  L.  ed. 

267 552 

Moses  Taylor,  The,  4  Wall.  411;  18  L.  ed.  397 416,  465 

Motes  v.  United  States,  178  U.  S.  458;  20  Sup.  Ct.  Rep.  993;  44 

L.  ed.  1150 74 

Moyer  v.  Peabody,  212  U.  S.  78;  29  Sup.  Ct,  Rep.  235;  53  L.  ed. 

410 512 

Mrs.  Alexander's  Cotton,  2  Wall.  404;  17  L.  ed.  915 504 

Mugler  v.  Kansas,  123  U.  S.  623;  8  Sup.  Ct.  Rep.  273;  31  L.  ed. 

205 249 

Munn  v.  Illinois,  94  U.  S.  113;  24  L.  ed.  77 265,  549 


TABLE  OF  CASES  xxxvii 

Page 

Murphy  v.  Charleston,  96  U.  S.  432;  24  L.  ed.  760.  .  ;  363 

Murray's  Lessee  v.  Hoboken  Land  &  Improvement  Co.,  18  How. 

272;  15  L.  ed.  372 227,  337,  532 

Muskrat  v.  United  States,  219  U.  S.  346;  31  Sup.  Ct.  Rep.  250; 

55  L.  ed.  246.  . 29,400 


N 

Nathan  v.  Louisiana,  8  How.  73;  12  L.  ed.  992 233 

National  Bank  v.  Commonwealth,  9  Wall.  353;  19  L.  ed.  701.  .    371 
National  Bank  v.  County  of  Yankton,  101  U.  S.  129;  25  L.  ed. 

1046 128,  144 

Neagle,  In  re,  135  U.  S.  1 ;  10  Sup.  Ct.  Rep.  658;  34  L.  ed.  55   423,  477 

Neal  v.  Delaware,  103  U.  S.  370;  26  L.  ed.  567 190 

Neely  v.  Henkel,  180  U.  S.  109,  21  Sup.  Ct.  Rep.  302;  45  L.  ed. 

448 134,  436 

Nereide,  The,  9  Cr.  388;  3  L.  ed.  769 440 

Nevitt,  Re,  117  Fed.  Rep.  448 529 

New  Hampshire  v.  Louisiana,  108  U.  S.  76;  2  Sup.  Ct.  Rep.  176; 

27  L.  ed.  656 450,  456 

New  Jersey  Steam   Navigation  Co.   v.   Merchants'    National 

Bank,  6  How.  344;  12  L.  ed.  465 462 

New  Jersey  v.  Wilson,  7  Cr.  164;  3  L.  ed.  303 20 

New  Orleans  v.  New  Orleans  Waterworks  Co.,  142  U.  S.  79;  12 

Sup.  Ct.  Rep.  142;  35  L.  ed.  943 359 

v.  New  York  Mail  Steamship  Co.,  20  Wall.  387;  22  L.  ed. 

354 135,  503 

v.  Stempel,  175  U.  S.  309;  20  Sup.  Ct,  Rep.  110;  44  L.  ed. 

174 393 

v.  United  States,  10  Pet.  662;  9  L.  ed.  573 169 

v.  Winter,  1  Wh.  91;  4  L.  ed.  44 , 412 

New  York  v.  Compagnie  Generale  Transatlantique,  107  U.  S. 

59;  2  Sup.  Ct.  Rep.  87;  27  L.  ed.  383 309 

New  York  v.  Miln,  11  Pet.  102;  9  L.  ed.  648 233,  240,  258 

N.  Y.  Central  &  H.  R.  Ry.  Co.  v.  United  States,  212  U.  S.  481; 

29  Sup.  Ct.  Rep.  304;  53  L.  ed.  613 285 

New  York  Indians,  5  Wall.  761;  18  L.  ed.  708 114 

New  York  Life  Ins.  Co.  v.  Craven,  178  U.  S.  389;  20  Sup.  Ct. 

Rep.  962;  44  L.  ed.  1116 234 

New  York,  N.  H.  &  H.  R.  R.  Co.  v.  Interstate  Com.  Com.,  200 
U.  S.  361;  26  Sup.  Ct.  Rep.  272;  50  L.  ed.  515 272 


xxxviii  TABLE  OF  CASES 

Page 
Nicol  v.  Ames,  173  U.  S.  509;  19  Sup.  Ct.  Rep.  522;  43  L.  ed. 

786 224,  289 

Noble  State  Bank  v.  Haskell,  31  Sup.  Ct.  Rep.  186 342 

Norfolk  W.  R.  Co.  v.  Sims,  191  U.  S.  441;  24  Sup.  Ct.  Rep.  151; 

48  L.  ed.  254 256 

Northern  Securities  Co.  v.  United  States,  193  U.  S.  197;  24  Sup. 

Ct.  Rep.  436;  48  L.  ed.  679 31,  283 

Northwestern  Fertilizing  Co,  v.  Hyde  Park,  97  U.  S.  659;  24  L. 

ed.  1036 361,  362 

Norton  v.  Shelby  Co.,  118  U.  S.  425;  6  Sup.  Ct.  Rep.  1121;  30  L. 

ed.  178 17 

Norwood  v.  Baker,  172  U.  S.  269;  19  Sup.  Ct.  Rep.  187;  43  L.  ed. 

443. .  .  386 


O 

Ogden  v.  Saunders,  12  Wh.  213;  6  L.  ed.  606 295 

Ohio  Life  Insurance  &  Trust  Co.  v.  Debolt,  16  How.  416;  14  L. 

ed.  997 365 

Ohio  &  Mississippi  R.  R.  Co.  v.  Wheeler,  1  Black,  286;  17  L. 

ed.  130 413 

Olcott  v.  The  Supervisors,  16  Wall.  678;  21  L.  ed.  382 447 

Orchard  v.  Alexander,  157  U.  S.  372;  15  Sup.  Ct.  Rep.  635;  39  L. 

ed.  737 : 481 

Oregon  v.  Hitchcock,  202  U.  S.  60;  26  Sup.  Ct.  Rep.  568;  50  L. 

ed.  935 460 

Osborn  v.  Bank  of  United  States,  9  Wh.  738;  6  L.  ed.  204.  .23,  369 

Osborn  v.  United  States,  91  U.  S.  474;  23  L.  ed.  388 484 

Owensboro  National  Bank  v.  City  of  Owensboro,  173  U.  S.  664; 

19  Sup.  Ct.  Rep.  537;  43  L.  ed.  850 371 

Ozan  Lumber  Co.  v.  Union  Co.  National  Bank,  145  Fed.  344.  .  372 


P 

Pabst  Brewing  Co.  v.  Crenshaw,  198  U.  S.  17;  25  Sup.  Ct.  Rep. 

552;  49  L.  ed.  925 250 

Pace  v.  Burgess,  92  U.  S.  372;  23  L.  ed.  657 222 

Pacific  Insurance  Co.  v.  Soule,  7  Wall.  433;  19  L.  ed.  95 213,  222 

Pacific  Railroad  Removal  Cases,  115  U.  S.  1;  5  Sup.  Ct.  Rep. 

1113;  29  L.  ed.  319 413 


TABLE  OF  CASES  xxxix 

Page 
Palmer  v.  McMahon,  133  U.  S.  660;  10  Sup.  Ct.  Rep.  324;  33  L. 

ed.  772 375 

Paquete  Habana,  The,  175  U.  S.  677;  20  Sup.  Ct.  Rep.  290;  44 

L.  ed.  320 440 

Parsons  v.  United  States,  167  U.  S.  324;  17  Sup.  Ct.  Rep.  880; 

42  L.  ed.  185 489 

Passenger  Cases,  7  How.  283;  12  L.  ed.  702 171,  240,  258 

Patapsco  Guano  Co.  v.  Board  of  Agriculture,  171  U.  S.  345;  18 

Sup.  Ct.  Rep.  862;  43  L.  ed.  191 247 

Patterson  v.  Colorado,  205  U.  S.  454;  27  Sup.  Ct.  Rep.  556;  51 

L..ed.  879 327 

Patterson  v.  Kentucky,  97  U.  S.  501;  24  L.  ed.  1115.  .  .1 304 

Patton  v.  Brady,  184  U.  S.  608;  22  Sup.  Ct.  Rep.  493;  46  L.  ed. 

713 31,224 

Paul  v.  Virginia,  8  Wall.  168;  18  L.  ed.  357 83,  85,  234,  252 

Pembina  Silver  Mining  Co.  v.  Pennsylvania,  125  U.  S.  181;  8 

Sup.  Ct.  Rep.  737;  31  L.  ed.  650 252,  350 

Penhallow  v.  Doane,  3  Ball.  54;  1  L.  ed.  507 19 

Pennoyer  v.  McConnaughy,  140  U.  S.  1;  11  Sup.  Ct.  Rep.  699; 

35  L.  ed.  363 458 

Pennoyer  v.  Neff,  95  U.  S.  714;  24  L.  ed.  565 79,  334 

Pennsylvania  v.  W.  &  B.  Bridge  Co.,  18  Wall.  421;  15  L.  ed. 

435 : 292 

Pennsylvania  v.  Wheeling  &  B.  Bridge  Co.,  13  How.  518;  14  L. 

ed.  249 451 

Pensacola  Telegraph  Co.  v.  Western  Union  Telegraph  Co.,  96 

U.  S.  1;  24  L.  ed.  708 232,  252 

People  v.  Compagnie  Transatlantique,  107  U.  S.  59;  2  Sup.  Ct. 

Rep.  87;  27  L.  ed.  383 247,  258 

v.  Roberts,  159  N.  Y.  70 372 

v.  Roberts,  154  N.  Y.  101;  159  N.  Y.  70 394 

Perry  v.  Haines,  191  U.  S.  17;  24  Sup.  Ct.  Rep.  8;  48  L.  ed. 

73 463 

Pettibone  v.  Nichols,  203  U.  S.  192;  27  Sup.  Ct.  Rep.  Ill;  51  L. 

ed.  148 90 

Philadelphia  S.  S.  Co.  v.  Pennsylvania,  122  U.  S.  326;  7  Sup.  Ct. 

Rep.  1118;  30  L.  ed.  1200 261 

Pittsburgh,  C.,  C.  &  St.  L.  R.  Co.  v.  Backus,  154  U.  S.  421;  14 

Sup.  Ct.  Rep.  1114;  38  L.  ed.  1031 336 

Plessy  v.  Ferguson,  163  U.  S.  537;  16  Sup.  Ct.  Rep.  1138;  41 

L.ed?256..  331,355 


xl  TABLE  OF  CASES 

Page 
Plumber  v.  Coler,  178  U.  S.  115;  20  Sup.  Ct.  Rep.  829;  44  L. 

ed.  998 354,  376 

Plumley  v.  Massachusetts,  155  U.  S.  461;  15  Sup.  Ct.  Rep.  154; 

39  L.  ed.  223 251 

Poindexter  v.  Greenhow,  114  U.  S.  270;  5  Sup.  Ct.  Rep.  903;  29 

L.  ed.  185 349,  459 

Folk's  Lessee  v.  Wendell,  5  Wh.  293;  5  L.  ed.  92 443 

Pollard's  Lessee  v.  Hagan,  3  How.  212;  11  L.  ed.  565 169 

Pollock  v.  Bridgeport  S.  B.  Co.,  114  U.  S.  411;  5  Sup.  Ct.  Rep. 

881;  29  L.  ed.  147 484 

Pollock  v.  Farmers'  Loan  &  Trust  Co.,  157  U.  S.  429;  15  Sup.  Ct. 

Rep.  673;  39  L.  ed.  759,  and  158  U.  S.  601;  15  Sup.  Ct,  Rep. 

912;  39  L.  ed.  1108 223,  289,  375,  379 

Pope  v.  Williams,  193  U.  S.  621;  24  Sup.  Ct.  Rep.  573;  48  L.  ed. 

817. 190 

Postal  Telegraph  Cable  Co.  v.  Adams,  155  U.  S.  688;  15  Sup. 

Ct.  Rep.  268;  39  L.  ed.  311 252,  255,  259,  261 

Potter  v.  National  Bank,  102  U.  S.  163;  26  L.  ed.  Ill 443 

Powell  v.  Pennsylvania,  127  U.  S.  678;  8  Sup.  Ct.  Rep.  992;  32 

L.  ed.  253 250 

Prevost  v.  Greenaux,  19  How.  1;  15  L.  ed.  572 171 

Prigg  v.  Pennsylvania,  16  Pet.  539;  10  L.  ed.  1060 37,  91 

Prize  Cases,  2  Black,  635;  17  L.  ed.  459.  . 306,  499 

Providence  &  N.  Y.  S.  S.  Co.  v.  Hill  Mfg.  Co.,  109  U.  S.  578;  3 

Sup.  Ct.  Rep.  379;  27  L.  ed.  1038 466 

Public  Clearing  House  v.  Coyne,  194  U.  S.  497;  24  Sup.  Ct.  Rep. 

789;  48  L.  ed.  1092 534 

Pullman  Co.  v.  Adams,  189  U.  S.  420;  23  Sup.  Ct.  Rep.  494;  47 

L.  ed.  477 255 

Pullman  Co.  v.  Kansas,  216  U.  S.  56;  30  Sup.  Ct.  Rep.  232;  54 

L.  ed.  378 86,  263 

Pullman  Palace  Car  Co.  v.  Pennsylvania,  141  U.  S.  18;  11  Sup. 

Ct.  Rep.  876;  35  L.  ed.  613 259,  389,  390 


R 

Radich  v.  Hutchins,  95  U.  S.  210;  24  L.  ed.  409 322 

Rahrer,  In  re,  140  U.  S.  545;  11  Sup.  Ct.  Rep.  865;  35  L.  ed. 

572 250 

Railroad  v.  Maryland,  21  Wall.  456;  22  L.  ed.  678 262 


TABLE  OF  CASES  xli 

Page 

Railroad  Co.  v.  Husen,  95  U.  S.  465;  24  L.  cd.  527 232,  247 

Railroad  Tax  Cases,  92  U.  S.  575;  23  L.  ed.  663 228 

Railway  Commission  Cases,  116  U.  S.  307;  6  Sup.  Ct.  Rep.  334; 

29  L.  ed.  636 .361 

Rapier,  Ex  parte,  143  U.  S.  110;  12  Sup.  Ct,  Rep.  374;  36  L.  ed. 

93 302,  327,  377 

Rasmussen  v.  Idaho,  181  U.  S.  198;  21  Sup.  Ct.  Rep.  594;  45  L. 

ed.  820 247 

Rasmussen  v.  United  States,  197  U.  S.  516;  25  Sup.  Ct.  Rep. 

514;  49  L.  ed.  862 148 

Raymond  v.  Thomas,  91  U.  S.  712;  23  L.  ed.  434 138,  507 

Reagan  v.  Farmers'  Loan  &  Trust  Co.,  154  U.  S.  362;  14  Sup.  Ct. 

Rep.  1047;  38  L.  ed.  1014 459 

v.  Trust  Co.,  154  U.  S.  418;  14  Sup.  Ct.  Rep.  1062;  38  L. 

ed.  1030 265 

v.  United  States,  182  U.  S.  419;  21  Sup.  Ct.  Rep.  842;  45 

L.  ed.  1162 489 

Rearick  v.  Pennsylvania,  203  U.  S.  507;  27  Sup.  Ct.  Rep.  159; 

51  L.  ed.  295 256 

Reetz  v.  Michigan,  188  U.  S.  505;  23  Sup.  Ct.  Rep.  390;  47  L. 

ed.  563 336,  337 

Reggel,  Ex  parte,  114  U.  S.  642;  5  Sup.  Ct,  Rep.  1148;  29  L.  ed. 

250 89 

Reid  v.  Colorado,  187  U.  S.  137;  23  Sup.  Ct.  Rep.  92;  47  L.  ed. 

108 247 

Reynolds  v.  United  States,  98  U.  S.  145;  25  L.  ed.  244 144,  325 

Rhode  Island  v.  Massachusetts,  12  Pet.  657;  9  L.  ed.  1233 449 

Rhodes  v.  Iowa,  17OJJ.  S.  412;  18  Sup.  Ct.  Rep.  664;  42  L.  ed. 

1088 250 

Rice  v.  Foster,  4  Harr.  479 61 

Riverside  Oil  Co.  v.  Hitchcock,  190  U.  S.  316;  23  Sup.  Ct.  Rep. 

698;  47  L.  ed.  1074 541 

Roach  v.  Riswick,  McArthur  &  Mackay,  171 131 

Roberts  v.  Reilly,  116  U.  S.  80;  6  Sup.  Ct.  Rep.  291;  29  L.  ed. 

544 90,91 

Robertson  v.  Baldwin,  165  U.  S.  275;  17  Sup.  Ct,  Rep.  326;  41 

L.  ed.  715 331,  433 

Royall,  Ex  parte,  117  U.  S.  241;  6  Sup.  Ct.  Rep.  734;  29  L.  ed. 

868 424 

Runkle  v.  United  States,  122  U.  S.  543;  7  Sup.  Ct.  Rep.  1141; 

30  L.  ed.  1167.  .  .   481 


xlii  TABLE  OF  CASES 

S 

Page 
St.  Louis,  etc.,  Co.  v.  Mathews,  165  U.  S.  1;  17  Sup.  Ct.  Rep. 

243;  41  L.  ed.  611 354 

St.  Louis,  Iron  Mountain  &  Southern  Ry.  Co.  v.  Taylor,  210 

U.  S.  281;  28  Sup.  Ct.  Rep.  616;  52  L.  ed.  1061 277,  549 

Santa  Clara  v.  S.  Pacific  R.  R.  Co.,  18  Fed.  Rep.  385 217 

Santissima  Trinidad,  The,  7  Wh.  283;  5  L.  ed.  454 435 

Satterlee  v.  Matthewson,  2  Pet.  380;  7  L.  ed.  458 357 

Savings  &  Loan  Society  v.  Multnomah  Co.,  169  U.  S.  421;  18 

Sup.  Ct.  Rep.  392;  42  L.  ed.  803. 393 

Schick  v.  United  States,  195  U.  S.  65;  24  Sup.  Ct.  Rep.  826;  49 

L.  ed.  99 315 

Scholey  v.  Rew,  23  Wall.  331;  23  L.  ed.  99 223 

Schollenberger  v.  Pennsylvania,  171  U.  S.  1;  18  Sup.  Ct.  Rep. 

757;  43  L.  ed.  49 239,  251 

Scott  v.  Donald,  165  U.  S.  58;  17  Sup.  Ct.  Rep.  265;  41  L.  ed. 

632 247,458 

Scott  v.  Jones,  5  How.  343;  12  L.  ed.  181 119 

Security  Mutual  Life  Insurance  Co.  v.  Prewitt,  202  U.  S.  246; 

26  Sup.  Ct.  Rep.  619;  50  L.  ed.  1013 253,  429 

Seibert  v.  Lewis,  122  U.  S.  284;  7  Sup.  Ct.  Rep.  1190;  30  L.  ed. 

1161 : 360 

Sere  v.  Pitot,  6  Cr.  332;  3  L.  ed.  240 127 

Shawnee  Compress  Co.  v.  Anderson,  209  U.  S.  423;  28  Sup.  Ct. 

Rep.  572;  52  L.  ed.  865 285 

Shelby  County  v.  Guy,  11  Wh.  361;  6  L.  ed.  495 443,  444 

Shepard  v.  N.  P.  Ry.  Co.,  184  Fed.  765 265 

Sherlock  v.  Ailing,  93  U.  S.  99;  23  L.  ed.  819.  .-. 465 

Shoemaker  v.  United  States,  147  U.  S.  282;  13  Sup.  Ct.  Rep. 

361;  37  L.  ed.  170 488 

Shoshone  Mining  Co.  v.  Rutter,  177  U.  S.  505;  20  Sup.  Ct. 

Rep.  726;  44  L.  ed.  864 414 

Shurtleff  v.  United  States,  189  U.  S.  311;  23  Sup.  Ct.  Rep.  535; 

47  L.  ed.  828 489 

Siebold,  Ex  parte,  100  U.  S.  371;  25  L.  ed.  717 193 

Sinking  Fund  Cases,  99  U.  S.  700;  25  L.  ed.  496 344,  345 

Siren,  The,  v.  United  States,  7  Wall.  152;  19  L.  ed.  129 459 

Slater  v.  Mexican  National  R.  R.  Co.,  194  U.  S.  120;  24  Sup.  Ct. 

Rep.  581;  48  L.  ed.  900 79 

Slaughter  House  Cases,  16  Wall.  36;  21  L.  ed.  394.  .38,  67,  101,  331 
Smelting  Co.  v.  Kemp,  104  U.  S.  636;  26  L.  ed.  875 533 


TABLE  OF  CASES  xliii 

Page 
Smith  v.  Reeves,  178  U.  S.  436;  20  Sup.  Ct.  Rep.  919;  44  L.  ed. 

1140 458 

v.  St.  Louis,  etc.,  Ry.  Co.,  181  U.  S.  248;  21  Sup.  Ct.  Rep. 

603;  45  L.  ed.  847 247 

v.  United  States,  1  Wash.  Ter.  269 453 

v.  Whitney,  116  U.  S.  167;  6  Sup.  Ct.  Rep.  570;  29  L.  ed. 

601 498 

Smyth  v.  Ames,  169  U.  S.  466;  18  Sup.  Ct.  Rep.  418;  42  L.  ed. 

819 265,  344,  431 

Snyder  v.  Bettman,  190  U.  S.  249;  23  Sup.  Ct.  Rep.  803;  47 

L.  ed.  1035 219 

Society  for  Savings  v.  Coite,  6  Wall.  611;  18  L.  ed.  907 375 

South  Carolina  v.  United  States,  199  U.  S.  437;  26  Sup.  Ct. 

Rep.  110;  50  L.  ed.  261 35,  43,  379 

South  Dakota  v.  North  Carolina,  192  U.  S.  286;  24  Sup.  Ct. 

Rep.  269;  48  L.  ed.  448 451,  457 

S.  Pacific  Ry.  Co.  v.  Interstate  Com.  Com.,  219  U.  S.  433;  31 

Sup.  Ct.  Rep.  288,  55  L.  ed.  383 277 

Spalding  v.  Vilas,  161  U.  S.  483;  16  Sup.  Ct.  Rep.  631;  40  L.  ed. 

780 546 

Spies,  Ex  parte,  123  U.  S.  131;  8  Sup.  Ct.  Rep.  22;  31  L.  ed. 

80 71 

Spratt  v.  Spratt,  4  Pet.  393;  7  L.  ed.  897 105 

Spreckles  Sugar  Refining  Co.  v.  McClain,  192  U.  S.  397;  24  Sup. 

Ct.  Rep.  376;  48  L.  ed.  496 224,  289 

Springer  v.  United  States,  102  U.  S.  586;  26  L.  ed.  253 223,  533 

Springville  v.  Thomas,  166  U.  S.  707;  17  Sup.  Ct.  Rep.  717;  41 

L.  ed.  1172 ' 144,313 

St.  Louis  v.  Western  Union  Tel.  Co.,  148  U.  S.  92;  13  Sup.  Ct. 

Rep.  485;  37  L.  ed.  380 133 

Standard  Oil  Co.  v.  United  States,  221  U.  S.  1;  31  Sup.  Ct.  Rep. 

502 38,285 

Stanley  v.  Schwalby,  162  U.  S.  255;  16  Sup.  Ct.  Rep.  754;  40  L.    *• 

ed.  960 460 

State  Bank  of  Ohio  v.  Knoop,  16  How.  369;  14  L.  ed.  977 365 

State  Board  of  Assessors  v.  Comptoir  National  D'Escompte, 

191  U.  S.  388;  24  Sup.  Ct.  Rep.  109;  48  L.  ed.  232 394 

State  Freight  Tax  Case,  15  Wall.  232;  21  L.  ed.  146 261 

State  Tax  on  Foreign  Held  Bonds,  15  Wall.  300;  21  L.  ed.  179  390 
State  Tax  on  Railway  Gross  Receipts,  15  Wall.  284;  21  L.  ed. 

164. .  .261 


xliv  TABLE  OF  CASES 


Stearns  v.  Minnesota,  179  U.  S.  223;  21  Sup.  Ct.  Rep.  73;  45  L. 

ed.  162.-  ..............................................     94 

Stephens  v.  Cherokee  Nation,  174  U.  S.  445;  19  Sup.  Ct.  Rep. 

722;  43  L.  ed.  1041  .....................................   116 

Stewart  v.  Kahn,  11  Wall.  493;  20  L.  ed.  176  ..............  123,  500 

Stockard  v.  Morgan,  185  U.  S.  27;  22  Sup.  Ct.  Rep.  576;  46  L. 

ed.  785  ...............................................  256 

Stone  v.  Mississippi,  101  U.  S.  814;  25  L.  ed.  1079  ..........  362,  363 

Stoutenburgh  v.  Hennick,  129  U.  S.  141;  9  Sup.  Ct.  Rep.  256;  32 

L.  ed.  637  ..........................................  131,  292 

Strauder  v.  West  Virginia,  100  U.  S.  303;  25  L.  ed.  664  ......  74,  352 

Strawbridge  v.  Curtis,  3  Cr.  267;  2  L.  ed.  435  ................  412 

Sturges  v.  Crowninshield,  4  Wh.  122;  4  L.  ed.  529  .......  23,  57,  295 

Sully  v.  American  National  Bank,  178  U.  S.  289;  20  Sup.  Ct.  Rep. 

935;  44  L.  ed.  1072  .....................................     86 

Supervisors  v.  Durant,  9  Wall.  415;  19  L.  ed.  732  ............  425 

Swift  v.  Tyson,  16  Pet.  1;  10  L.  ed.  865  .....................  447 

Swift  v.  United  States,  105  U.  S.  691;  26  L.  ed.  1108  ..........     33 

Swift  &  Co.  v.  United  States,  196  U.  S.  375;  25  Sup.  Ct.  Rep. 

276;  49  L.  ed.  518  ......................................  284 


T 

Talbot  v.  Janson,  3  Ball.  133;  1  L.  ed.  540 108 

Tappan  v.  Merchants'  National  Bank,  19  Wall.  490;  22  L.  ed. 

189 392 

Tarble's  Case,  13  Wall.  397;  20  L.  ed.  597 421,  496 

Taylor  v.  Beckham,  178  U.  S.  548;  20  Sup.  Ct.  Rep.  890;  44  L.  ed. 

1187 63,64 

Taylor  v.  Taintor,  16  Wall.  366;  21  L.  ed.  287 89 

Tennessee  v.  Davis,  100  U.  S.  257;  25  L.  ed.  648 418,  421,  441 

Terlinden  v.  Ames,  184  U.  S.  270;  22  Sup.  Ct.  Rep.  484;  46  L. 

ed.  534 436,  533 

Texas  v.  White,  7  Wall.  700;  19  L.  ed.  227 25,  452,  501,  505 

Thomas  v.  Gay,  169  U.  S.  264;  18  Sup.  Ct,  Rep.  340;  42  L.  ed. 

.  740 170 

Thompson  v.  Utah,  170  U.  S.  343;  18  Sup.  Ct.  Rep.  620;  42  L. 

ed.  1061 144,  311 

Thomson  v.  Union  Pacific  R.  Co.,  9  Wall.  579;  19  L.  ed.  792.  ..   371 
Thorington  v.  Smith,  8  Wall.  1;  19  L.  ed.  361 135 


TABLE  OF  CASES  xlv 

Page 

Tiburcio,  In  re,  6  Sawyer,  349 172 

Tiger -v.  Western  Investment  Co.,  31  Sup.  Ct.  Rep.  378 116 

Tindal  v.  Wesley,  167  U.  S.  204;  17  Sup.  Ct.  Rep.  770;  42  L.  ed. 

137 460 

Toledo,  etc.,  R.  Co.  v.  Penn.  Co.,  54  Fed.  Rep.  730 332 

Tonawanda  v.  Lyon,  181  U.  S.  389;  21  Sup.  Ct.  Rep.  609;  45  L. 

ed.  908 386 

Trade-Mark  Cases,  100  U.  S.  82;  25  L.  ed.  550 304 

Treat  v.  White,  181  U.  S.  264;  21  Sup.  Ct.  Rep.  611;  45  L.  ed. 

853 31 

Trono  v.  United  States,  199  U.  S.  521;  26  Sup.  Ct.  Rep.  121;  50 

L.  ed.  292 318 

Tua  v.  Carriere,  117  U.  S.  201;  6  Sup.  Ct.  Rep.  565;  29  L.  ed. 

855 297 

Turner  v.  Maryland,  107  U.  S.  38;  2  Sup.  Ct.  Rep.  44;  27  L.  ed. 

370 247 

Turner  v.  Williams,  194  U.  S.  279;  24  Sup.  Ct.  Rep.  719;  48  L. 

ed.  979 98 

Turpin  v.  Burgess,  117  U.  S.  504;  6  Sup.  Ct.  Rep.  835;  29  L.  ed. 

988 222 

Twin  City  National  Bank  v.  Nebeker,  167  U.  S.  196;  17  Sup.  Ct. 

Rep.  766;  42  L.  ed.  134 202 

Twining  v.  New  Jersey,  211  U.  S.  78;  29  Sup.  Ct.  Rep.  14;  53  L. 

ed.  97 319,  333,  336 

Tyler,  In  re,  149  U.  S.  164;  13  Sup.  Ct.  Rep.  785;  37  L.  ed. 

689  ..  .   458 


U 

Union  Bridge  Co.  v.  United  States,  204  U.  S.  364;  27  Sup.  Ct. 

Rep.  367;  51  L.  ed.  523 549 

Union  Pacific  R.  R.  Co.  v.  Peniston,  18  Wall.  5;  21  L.  ed.  787 

259, 371 
Union  Refrigerator  Transit  Co.  v.  Kentucky,  199  U.  S.  194;  26 

Sup.  Ct.  Rep.  36;  50  L.  ed.  150 385,  388,  390 

United  States  v.  American  Tobacco  Co.,  221  U.  S.  106;  31  Sup. 

Ct.  Rep.  632 ' 285 

v.  Arjona,  120  U.  S.  479;  7  Sup.  Ct.  Rep.  628;  30  L.  ed. 

728 299,305 

v.  Bailey,  9  Pet.  238;  9  L.  ed.  113 553 


xlvi  TABLE  OF  CASES 

Page 
United  States  v.  Ballin,  144  U.  S.  1;  12  Sup.  Ct.  Rep.  507;  36  L. 

ed.  321 201 

v.  Ball,  163  U.  S.  662;  16  Sup.  Ct.  Rep.  1192;  41  L.  ed.  300.  .  318 

v.  Bevans,  3  Wh.  336;  4  L.  ed.  404 464 

v.  Butterworth,  112  U.  S.  50;  5  Sup.  Ct.  Rep.  25;  28  L.  ed. 

656 .% 531 

v.  Carlisle,  16  Wall.  147;  21  L.  ed.  426 * 97 

v.  Clarke,  8  Pet.  436;  8  L.  ed.  1001 459 

v.  Coe,  155  U.  S.  76;  15  Sup.  Ct.  Rep.  16;  39  L.  ed.  76.  . .  .   129 

v.  Cruikshank,  92  U.  S.  542;  23  L.  ed.  588. 190,  328 

v.  Delaware  &  H.  Co.,  213  U.  S.  366;  29  Sup.  Ct.  Rep.  527; 

53  L.  ed.  836 30,  38,  271 

v.  Diekelman,  92  U.  S.  520;  23  L.  ed.  742 513 

v.  Duell,  172  U.  S.  576;  19  Sup.  Ct.  Rep.  286;  43  L.  ed.  559  531 
v.  E.  C.  Knight  Co.,  156  U.  S.  1;  15  Sup.  Ct.  Rep.  249;  39 

L.  ed.  325 236,  280 

v.  Easton,  144  U.  S.  677;  12  Sup.  Ct.  Rep.  764;  36  L.  ed.  591  553 

v.  Eliason,  16  Pet.  291;  10  L.  ed.  968 552 

v.  Ferreira,  13  How.  40;  14  L.  ed.  42 488,  530 

v.  Fisher,  2  Cr.  358;  2  L.  ed.  304 51 

v.  Germaine,  99  U.  S.  508;  25  L.  ed.  482 485 

v.  Hartwell,  6  Wall.  385;  18  L.  ed.  830 183 

v.  Holliday,  3  Wall.  407;  18  L.  ed.  182 269,  293,  436 

v.  Huckabee,  16  Wall.  414;  21  L.  ed.  457 123 

v.  Joint  Traffic  Association,  171  U.  S.  505;  19  Sup.  Ct.  Rep. 

25;  43  L.  ed.  259 281,  288 

v.  Jones,  109  U.  S.  513;  3  Sup.  Ct.  Rep.  346;  27  L.  ed.  1015 

55,  156 
v.  Ju  Toy,  198  U.  S.  253;  25  Sup.  Ct.  Rep.  644;  49  L.  ed.  1040 

98,  534,  536 
v.  Kagama,  118  U.  S.  375;  6  Sup.  Ct.  Rep.  1109;  30  L.  ed. 

228 113,  115,  127,  293 

v.  Keokuk,  6  Wall.  514;  18  L.  ed.  933 425,  426 

v.  Lee,  106  U.  S.  196;  1  Sup.  Ct.  Rep.  240;  27  L.  ed.  171 ..   459 
v.  Lehigh  Valley  Ry.  Co.,  220  U.  S.  257;  31  Sup.  Ct.  Rep. 

377,  55  L.  ed.  458 271,  272 

v.  Lee  Yen  Tai,  185  U.  S.  213;  22  Sup.  Ct.  Rep.  629;  46  L. 

ed.  878 166 

v.  Louisiana,  123  U.  S.  32;  8  Sup.  Ct.  Rep.  17;  31  L.  ed.  69  400 

v.  Maid,  116  Fed.  Rep.  650 553 

v.  Marigold,  9  How.  560;  13  L.  ed.  257 288,  299,  316 


TABLE  OF  CASES  xlvii 

Page 
United  States  v.  Miller,  128  U.  S.  40;  9  Sup.  Ct.  Rep.  12;  32  L. 

ed.  354 541 

v.  Mitchell,  2  Dall.  348;  1  L.  ed.  410 323 

v.  Mouat,  124  U.  S.  303;  8  Sup.  Ct.  Rep.  505;  31  L.  ed. 

463 485 

v.  North  Carolina,  136  U.  S.  211;  10  Sup.  Ct.  Rep.  920;  34 

L.  ed.  336 452 

v.  Palmer,  3  Wh.  610;  4  L.  ed.  471 435 

v.  The  Peggy,  1  Cr.  103;  2  L.  ed.  49 170 

v.  Perez,  9  Wh.  579;  6  L.  ed.  165 318 

v.  Perkins,  116  U.  S.  483;  6  Sup.  Ct.  Rep.  449;  29  L.  ed. 

700 489 

v.  Perkins,  163  U.  S.  625;  16  Sup.  Ct.  Rep.  1073;  41  L.  ed. 

287 376 

v.  Peters,  5  Cr.  115;  3  L.  ed.  53 20,  458 

v.  Planters'  Bank  of  Georgia,  9  Wh.  904;  6  L.  ed.  244 457 

v.  Price,  116  U.  S.  43;  6  Sup.  Ct.  Rep.  235;  29  L.  ed.  541  311 
v.  Rauscher,  119  U.  S.  407;  7  Sup.  Ct.  Rep.  234;  30  L.  ed. 

425 .' 88 

v.  Realty  Co.,  163  U.  S.  427;  16  Sup.  Ct.  Rep.  1120;  41  L. 

ed.  215 216,  220,  312 

v.  Reese,  92  U.  S.  214;  23  L.  ed.  563 30,  189,  193 

;  v.  Rice,  4  Wh.  246;  4  L.  ed.  562 95,  134 

v.  Rickert,  188  U.  S.  432;  23  Sup.  Ct.  Rep.  478;  47  L.  ed. 

532 116 

v.  Russell,  13  Wall.  623;  20  L.  ed.  474 514 

v.  Sing  Tuck,  194  U.  S.  161;  24  Sup.  Ct.  Rep.  621;  48  L. 

ed.  917 365 

v.  South  Carolina,  199  U.  S.  437;  26  Sup.  Ct.  Rep.  110;  50  L. 

ed.  261 61 

v.  Standard  Sanitary  Mfg.  Co,  (''Bath  Tub  Trust"),  U.  S. 

Cir.  Ct 304 

v.  Texas,  143  U.  S.  621;  12  Sup.  Ct.  Rep.  488;  36  L.  ed.  285  452 
v.  Trans-Missouri  Freight  Association,  166  U.  S.  290;  17 

Sup.  Ct.  Rep.  540;  41  L.  ed.  1007 38,  279,  281 

v.  Williams,  104  U.  S.  279;  24  Sup.  Ct.  Rep.  719;  48  L.  ed. 

979 326 

v.  Wiltberger,  5  Wh.  76;  5  L.  ed.  37 322 

v.  Wong  Kim  Ark,  169  U.  S.  649;  18  Sup.  Ct.  Rep.  456;  42 

L.  ed.  890 97,  102,  170,  175 

v.  Worrall,  2  Dall.  384;  1  L.  ed.  426 264 


xlviii  TABLE  OF  CASES 


Vallandigham,  Ex  parte,  I  Wall.  243;  17  L.  ed.  589 517 

Van  Allen  v.  Assessors,  3  Wall.  573;  18  L.  ed.  229 375,  377 

Van  Brocklin  t>.  Tennessee,  117  U.  S.  151;  6  Sup.  Ct.  Rep.  670; 

29  L.  ed.  845 133,  373 

Vance  v.  Vandercook,  170  U.  S.  438;  18  Sup.  Ct.  Rep.  674;  42 

L.  ed.  1100 250,  252 

Veazie  Bank  v.  Fenno,  8  Wall.  533;  19  L.  ed.  482.  .97,  211,  222, 

288,  289,  377 

Virginia,  Ex  parte,  100  U.  S.  339;  25  L.  ed.  676 74,  339 

Virginia  v.  Rives,  100  U.  S.  313;  25  L.  ed.  667 74,  352 

Virginia  v.  Tennessee,  148  U.  S.  503;  13  Sup.  Ct.  Rep.  728;  37 

L.  ed.  537..  92 


W 

Wabash,  St.  L.  &  P.  R.  Co.  v.  Illinois,  118  U.  S.  557;  7  Sup.  Ct. 

Rep.  4;  30  L.  ed.  244 .'. 265 

Wadsworth  v.  Shortall,  206  Pa.  St.  165 512 

Walling  v.  Michigan,  116  U.  S.  446;  6  Sup.  Ct.  Rep.  454;  29  L.  . 

ed.  691 255 

Ward  v.  Maryland,  12  Wall.  418;  20  L.  ed.  449 84,  255 

Ward  v.  Race  Horse,  163  U.  S.  504;  16  Sup.  Ct.  Rep.  1076;  41  L. 

ed.  244 171 

Ware  v.  Hylton,  3  Dall.  199;  1  L.  ed.  568 19,  170,  171 

Ware  v.  Mobile,  209  U.  S.  405;  28  Sup.  Ct.  Rep.  526;  52  L.  ed. 

855 256 

Waring  v.  Clarke,  5  How.  441;  12  L.  ed.  226 462 

Warner,  Barnes  &  Co.  v.  United  States,  197  U.  S.  419;  25  Sup. 

Ct.  Rep.  455;  49  L.  ed.  816 149 

Washington  University  v.  Rouse,  8  Wall.  439;  19  L.  ed.  498.  .  .  45 
Waters-Pierce  Oil  Co.  v.  Texas,  177  U.  S.  28;  20  Sup.  Ct.  Rep. 

518;  44  L.  ed.  657 86 

Watson  v.  Jones,  13  Wall.  679;  20  L.  ed.  666 326 

Watson  v.  Mercer,  8  Pet.  88;  8  L.  ed.  876 357 

Webber  v.  Virginia,  103  U.  S.  334;  26  L.  ed.  565 255,  304,  372 

Weber  v.  Lee  Co.,  6  Wall.  210;  18  L.  ed.  781 425,  526 

Webster  v.  Reid,  11  How.  437;  13  L.  ed.  761 144 

Weems  v.  United  States,  217  U.  S.  349;  30  Sup.  Ct.  Rep.  544;  54 

L.  ed.  793..  .  321 


TABLE  OF  CASES  xlix 

Page 

Welton  v.  Missouri,  91  U.  S.  275;  23  L.  ed.  347 255 

West  v.  Kansas  Nat.  Gas  Co.,  221  U.  S.  229;  31  Sup.  Ct.  Rep. 

564,  55  L.  ed.  716 237 

West  v.  Louisiana,  194  U.  S.  258;  24  Sup.  Ct.  Rep.  650;  48  L. 

ed.  965 336 

Western  Union  Telegraph  Co.  v.  Borough  of  New  Hope,  187 

U.  S.  419;  23  Sup.  Ct.  Rep.  204;  47  L.  ed.  240 263 

v.  Call  Publishing  Co.,  181  U.  S.  92;  21  Sup.  Ct.  Rep.  561; 

45  L.  ed.  765 264,  446 

v.  James,  162  U.  S.  650;  16  Sup.  Ct.  Rep.  934;  40  L.  ed. 

1105 246 

v.  Kansas,  216  U.  S.  1;  30  Sup.  Ct.  Rep.  190;  54  L.  ed.  355 

86,  253,  263,  432 
v.  Massachusetts,  125  U.  S.  530;  8  Sup.  Ct.  Rep.  961;  31 

L.  ed.  790 254,  260 

Weston  v.  Charleston,  2  Pet.  449;  7  L.  ed.  481 23,  374 

Wheaton  v.  Peters,  8  Pet.  591;  8  L.  ed.  1055 264,  446 

White  v.  Berry,  171  U.  S.  366;  18  Sup.  Ct.  Rep.  917;  43  L.  ed. 

199 489 

Whitney  v.  Robertson,  124  U.  S.  190;  8  Sup.  Ct.  Rep.  456;  31  L. 

ed.  386 168 

Wight  v.  Davidson,  181  U.  S.  371;  21  Sup.  Ct.  Rep.  616;  45  L. 

ed.  900 386 

Wilcox  v.  Jackson,  13  Pet.  498;  10  L.  ed.  264 481 

Wiley  v.  Sinkler,  179  U.  S.  58;  21  Sup.  Ct.  Rep.  17;  45  L.  ed.  84  190 
Williams  v.  Mississippi,  170  U.  S.  213;  18  Sup.  Ct.  Rep.  583;  42 

L.  ed.  1012 195 

v.  Suffolk  Insurance  Co.,  13  Pet.  415;  10  L.  ed.  226 435 

v.  United  States,  1  How.  290;  11  L.  ed.  135 480 

v.  Wingo,  177  U.  S.  601;  20  Sup.  Ct.  Rep.  793;  44  L.  ed. 

905 358 

Williamson  v.  United  States,  207  U.  S.  425;  28  Sup.  Ct.  Rep. 

163;  52  L.  ed.  278 .    184 

Wilson,  Ex  parte,  114  U.  S.  417;  5  Sup,  Ct.  Rep.  935;  29  L.  ed. 

89 314 

Wilson  v.  Black  Bird  Creek  Marsh  Co.,  2  Pet.  245;  7  L.  ed.  412  240 
v.  Eureka  City,  173  U.  S.  32;  19  Sup.  Ct.  Rep.  317;  43  L.  ed. 

603 539 

v.  North  Carolina,  169  U.  S.  586;  18  Sup.  Ct.  Rep.  435;  42  L. 

ed.  865 64 

v.  Shaw,  204  U.  S.  24;  27  Sup.  Ct.  Rep.  233;  51  L.  ed.  351  287 


1  TABLE  OF 

Page 
Wisconsin  v.  Pelican  Insurance  Co.,  127  U.  S.  265;  8  Sup.  Ct, 

Rep.  1370;  32  L.  ed.  239 78,  451 

Wisconsin  C.  R.  Co.  v.  Price  County,  133  U.  S.  496;  10  Sup.  Ct. 

Rep.  341;  33  L.  ed.  687 373 

Wolfe  v.  Hartford  Life  Insurance  Co.,  148  U.  S.  389;  13  Sup.  Ct. 

Rep.  602;  37  L.  ed.  493 414 

Wolff  v.  New  Orleans,  103  U.  S.  358;  26  L.  ed.  395 360 

Woodruff  v.  Parham,  8  Wall.  123;  19  L.  ed.  382 221,  257,  290 

Worcester  v.  Georgia,  6  Pet.  515;  8  L.  ed.  483 23,  114 


Y 

Yamataya  v.  Fisher,  189  U.  S.  86;  23  Sup.  Ct.  Rep.  611;  47  L. 

ed.  721 537 

Yang  Sing  Hee,  In  re,  13  Sawyer,  486 310 

Yarbrough,  Ex  parte,  110  U.  S.  651;  4  Sup.  Ct.  Rep.  152;  28  L. 

ed.  274 74,  190,  193 

Yick  Wo  v.  Hopkins,  118  U.  S.  356;  6  Sup.  Ct.  Rep.  1064;  30  L. 

ed.  220 195,  352,  538 

Young,  Re,  209  U.  S.  123;  28  Sup.  Ct.  Rep.  441;  52  L.  ed.  714. .  459 


PRINCIPLES  OF  THE  CONSTITUTIONAL 
LAW  OF  THE  UNITED  STATES 

CHAPTER  I 

INTRODUCTORY — PRELIMINARY   DEFINITIONS 

The  constitutional  jurisprudence  of  the  United  States 
is  an  especially  complicated  one,  and  its  principles  pro- 
portionately difficult  of  exposition  and  comprehension. 
This  complexity  is  in  the  main  due  to  the  Federal  character 
of  our  governmental  system.  A  prerequisite  to  an  ac- 
curate understanding  of  American  public  law  is,  therefore, 
a  knowledge  of  the  juristic  nature  of  the  Federal  form  of 
political  organization,  and  this  in  turn  necessitates  an 
explanation  of  certain  terms  such  as  " State,"  "  Govern- 
ment," "Sovereignty,"  and  " Constitutional  Law."  The 
definition  of  this  last  term  will  be  found  especially  neces- 
sary in  order  that  its  American  usage  may  be  distinguished 
from  that  in  the  other  countries  of  the  world. 

State  and  government  distinguished  • 

An  aggregate  of  individuals  living  together  and  united 
by  mutual  social  and  economic  interests  is  termed  a  So- 
ciety. A  Society  viewed  as  a  politically  organized  group 
is  termed  a  Body-Politic  or  State.  The  complexus  of  or- 
gans or  agencies  through  which  the  State  performs  its 
functions  are  termed  its  Government.  The  persons  who 
operate  this  political  machinery  are  collectively  known  as 
1  1 


PRINCIPLES  ov  THE  CONSTITUTIONAL 

the  Magistracy.  The  commands  and  directions  issued  by 
the  State  and  enforced  through  its  government  by  those 
in  official  authority  are  known  as  Laws.  These  laws  are 
divisible  into  public  and  private,  the  former  including  as 
sub-classes,  constitutional  and  international  law.  Politi- 
cal theorists  and  jurists  are  not  agreed  as  to  whether, 
strictly  speaking,  the  rules  regulating  the  relations  of 
States  to  one  another  should  be  termed  laws.  This,  how- 
ever, is  a  question  which  it  is  not  necessary  here  to  discuss. 

Constitutionally  viewed,  the  State  appears  as  an  entity 
or  corporate  person  possessing  the  supreme  legal  will,  or, 
as  this  supreme  legal  will  is  termed,  the  Sovereignty.  The 
State  is  thus  the  ultimate  source  of  law  for  all  persons  sub- 
ject to  its  authority.  These  persons  include  all  those  who 
owe  direct  fealty  or  allegiance  to  the  State,  and  known  as 
citizens  or  subjects,  as  well  as  all  citizens  or  subjects  of 
other  States,  known  as  aliens,  who  are  temporarily  or 
permanently  within  the  territorial  limits  of  the  State. 

In  every  politically  organized  community  entitled  to 
be  termed  a  State  there  exists,  then,  an  authority  to  which, 
from  the  legal  point  of  view,  all  interests  are  potentially 
subject.  In  the  entire  body  of  laws,  public  and  private, 
as  they  exist  at  any  one  time,  is  stated  the  supreme  will 
of  the  State  so  far  as  it  has  found  expression.  Because 
supreme,  and  the  sole  source  of  law,  the  only  legal  limits 
to  this  will  are  those  which  are  self-set.  These  self-set 
limitations  exist  in  the  form  of  constitutional  provisions 
determining  the  manner  in  which  the  State's  sovereign 
will  shall  be  expressed  and  enforced.  In  other  words, 
these  constitutional  or  fundamental  provisions  provide 
for  the  governmental  organization  of  the  State  and  de- 
limit its  powers.  The  government,  therefore,  as  dis- 
tinguished from  the  State,  exercises  the  sovereignty,  but 
does  not  possess  it.  Instead  of  being  itself  the  ultimate 
source  of  legal  authority,  its  agents  may  legally  exercise 


LAW  OF  THE  UNITED  STATES  3 

only  those  powers  recognized  by  existing  constitutional 
law.  Where,  as  in  a  State  autocratically  organized,  few 
or  no  legal  limitations  upon  the  official  authority  of  thie 
autocrat  or  of  his  appointees  and  advisers  exist,  the  govern- 
ment has,  of  course,  practically  uncontrolled  legal  power. 
In  modern  constitutional  States,  however,  the  govern- 
ments are  not  only  without  legal  authority  with  reference 
to  many  matters,  but  are  obliged  to  exercise  the  authority 
which  they  do  possess  according  to  definitely  determined 
modes  of  procedure.  It  is  to  be  repeated,  however,  that 
the  domain  of  the  legal  and  political  interests  of  the  in- 
dividual is  simply  that  which,  under  existing  laws,  neither 
public  nor  private  persons  may  legally  enter.  From  the 
possible  control  of  the  State,  however,  through  the  enact- 
ment of  new  constitutional  or  statutory  laws  these  liberties 
are  not  and  cannot  be  exempt.  Professor  Burgess  has 
put  this  very  clearly  when  he  says:  "The  individual  is 
defended  in  this  sphere  against  the  government  by  the 
power  that  makes  and  maintains  and  can  destroy  the 
government;  and  by  the  same  power,  through  the  govern- 
ment, against  any  encroachments  from  any  quarter. 
Against  that  power  itself,  however,  he  has  no  defence."1 
This  characteristic  of  legal  omnipotence  thus  predicated 
of  the  State  is,  of  course,  not  to  be  construed  as  carrying 
with  it  an  actual  omnipotence  of  physical  coercive  power. 
The  extent  to  which  any  given  State,  or,  to  speak  more 
accurately,  those  who  express  and  enforce  its  will,  may 
control  the  actions  of  those  subject  to  their  authority  is 
dependent  upon  manifold  conditions  of  time  and  place, 
and  especially  upon  the  character  and  disposition  of  those 
to  be  coerced.  All  government,  as  Hume  says,  rests  upon 
opinion.  In  every  State  the  very  existence  of  its  govern- 
ment, the  extent  of  its  powers,  and  the  manner  of  their 


Political  Science  and  Comparative  Constitutional  Law,  I,  176. 


4  PRINCIPLES  OF  THE  CONSTITUTIONAL 

exercise,  is  ultimately  dependent  upon  the  acquiescence 
of  the  people.  This  ultimate  right  of  the  people  means, 
however,  nothing  more  than  that  there  is  a  limit  to  which 
political  oppression  and  incompetence  may  safely  go.  Be- 
fore this  limit  is  reached — a  limit  which  differs  in  different 
States  according  to  the  temper  and  enlightenment  of  their 
respective  citizen  bodies — there  is  abundant  opportunity  for 
grievous  oppression  and  disastrous  official  incompetence. 
The  fundamental  problem  of  practical  politics  the  world 
over  is  thus  to  secure  a  form  of  political  organization  which 
will  ensure  a  wise  administration  of  public  affairs,  and 
be  sufficiently  strong  and  independent  to  maintain  it- 
self against  unwarranted  attack,  and  yet  be  subjected  to  a 
control  which  will  furnish  a  substantial  guarantee  that 
the  people  will  not  be  oppressed.  This  is  the  problem  of 
constitutional  government,  and  of  constitutional  law. 

• 

The  unity  and  indivisibility  of  sovereignty 

In  the  paragraphs  which  have  gone  before  it  has  been 
indicated  that,  legally  viewed,  the  essential  characteristic 
of  a  State  is  the  possession  by  it  of  a  supreme  law- 
determining  .authority  termed  Sovereignty.  This  attri- 
bute connotes  upon  the  one  hand  complete  freedom  of  its 
possessor  from  the  legal  control  of  any  other,  political 
authority  whatsoever;  and,  upon  the  other  hand,  the  right 
of  absolute  and  exclusive  jurisdiction  over  the  legal  rights 
and  obligations  of  those  subject  to  its  authority,  whether 
these  be  considered  individually  or  as  grouped  into  larger 
or  smaller  associations  of  men. 

As  thus  expressing  a  supreme  will  sovereignty  is  neces- 
sarily a  unity  and  indivisible.  That  there  cannot  be 
within  the  same  political  body  two  wills,  each  absolutely 
supreme,  would  seem  to  be  sufficiently  obvious,  and,  in 
fact,  the  contrary  has  not  often  been  maintained  in  direct 
terms.  It  has,  however,  been  widely  asserted  that  the 


LAW  OF  THE  UNITED  STATES  5 

sphere  of  political  authority  may  be  divided  into  two  or 
more  distinct  parts,  and  political  organizations  established 
in  each  which,  within  their  respective  fields,  may  be  wholly 
independent  of  the  control  of  one  another.  And  this  has 
been,  and  still  is,  often  spoken  of  by  the  Supreme  Court 
of  the  United  States,  as  well  as  by  other  tribunals,  as  a 
division  of  sovereignty  and  as  exemplified  in  the  American 
constitutional  system.  The  statement  is,  however,  an 
erroneous  one,  and  due  to  a  confusion  between  the  ideas 
of  State  and  Government,  and  to  a  failure  to  distinguish 
between  the  possession  of  sovereignty  by  the  State  and 
the  exercise  by  governmental  agencies  of  powers  delegated 
to  them  by  this  sovereign  authority. 

Though  the  sovereign  will  of  a  State  may  not  be  divided, 
it  may  find  expression  through  several  legislative  mouth- 
pieces, and  the  execution  of  its  commands  may  be  dele- 
gated to  a  variety  of  governmental  agencies.  Theoretic- 
ally, indeed,  a  State  may  go  to  any  extent  in  the  delegation 
of  the  exercise  of  its  powers,  not  only  to  governmental  or- 
gans of  its  own  creation  but  to  those  of  other  States.  In 
the  latter  case  the  State  to  whose  governmental  or- 
gans the  exercise  of  the  powers  in  question  has  been  dele- 
gated acts  as  the  agent  of  the  delegating  State,  which 
State  retains  the  legal,  if  not  the  actual,  power  of  with- 
drawing the  grants  of  authority  which  it  has  made.  Thus 
England  concedes  to  certain  of  its  colonies,  as,  for  example, 
Canada  and  Australia,  almost  complete  authority  of  gov- 
ernment and  yet  its  legal  sovereignty  over  these  possessions 
is  in  no  wise  diminished  or  divided.  So,  similarly,  there 
have  been  many  instances  in  which  States  have  placed  the 
administration  of  certain  of  their  own  districts  in  the  hands 
of  other  Sovereignties,  and  in  the  numerous  so-called  Pro- 
tectorates we  have  instances  of  weaker  and  less  developed 
States  surrendering  the  control  of  their  foreign  relations 
and,  indeed,  certain  of  their  domestic  affairs  to  foreign 


6  PRINCIPLES  OF  THE  CONSTITUTIONAL 

nations,  without  any  formal  claim  of  sovereignty  over 
these  administered  districts  or  weaker  States  being  as- 
serted by  the  administering  powers. 

Distinction  between  Confederacy  and  Federal  State 

Two  types  of  governmental  organization  which  espe- 
cially illustrate  the  distinction  between  the  possession  of 
sovereignty  and  the  delegation  of  the  exercise  of  certain 
governmental  powers  are  the  Confederacy  and  the  Federal 
State. 

In  a  Confederacy  a  number  of  sovereign  States  create 
by  their  joint  action  a  central  government  as  their  com- 
mon agent  for  the  exercise  of  certain  powers,  which  it  is 
to  their  interest  shall  be  thus  exercised.  Each  State  thus 
co-operating  remains  a  sovereign  body-politic,  united  only 
by  a  treaty  or  other  form  of  compact  with  the  other  States, 
and  not  only  retains  all  the  political  powers  not  granted 
to  the  central  government,  but  remains  legally  free  to 
withdraw  at  any  time  from  the  Confederacy  into  which 
it  has  entered.  Strictly  speaking,  the  term  Confederate 
State  is  thus  a  misnomer,  for  no  central  State  exists  but 
only  a  central  government  which  acts  as  the  common 
agent  of  each  of  the  agreeing  States.  In  a  Federal  State, 
upon  the  other  hand,  we  have  a  single  sovereign  political 
person  or  entity  which  vests  the  exercise  of  certain  of  its 
powers  in  a  central  government,  and  the  remaining  powers 
in  local  governments  independent  of  one  another  but  all 
acting  within  their  several  districts  as  agents  of  the  central 
sovereignty,  the  Federal  State.  Thus,  just  as  it  has  been 
declared  to  be  incorrect  to  speak  of  a  Confederacy  as  a 
State,  so  here,  technically  speaking,  what  exists  is  a  single 
State,  with  a  governmental  machinery  consisting  of  a 
central  organization  and  a  number  of  local  autonomous 
governing  agencies.  It  is,  therefore,  more  correct  to 
speak  of  such  a  State  as  having  a  Federal  form  of  govern- 


LAW  OF  THE  UNITED  STATES  7 

mental  organization,  than  it  is  to  designate  it  as  a  Federal 
State.2  Whether  or  not  the  constitutional  units  of  this 
federally  organized  body  are  entitled  to  be  termed  States 
is  a  question  more  important  to  political  theory  than  it 
is  to  constitutional  law.  Those  political  philosophers  who 
make  sovereignty  an  essential  attribute  of  statehood  are 
of  course  obliged  to  deny  to  them  this  title,  but  the  con- 
stitutional lawyer  is  not  thus  obligated.  It  is,  however, 
of  the  utmost  importance  to  the  jurist  to  keep  clearly 
in  mind  the  doctrine  that  the  theory  of  a  divided  sover- 
eignty is  a  false  one,  and  that,  conceding  the  sovereignty 
of  the  United  States  as  a  National  State  (regarding  which 
there  is  now  no  longer  controversy),  it  necessarily  follows 
that  the  central  government  and  the  state  governments  do 
not  stand  over  against  one  another  as  co-ordinate  powers 
between  whom  the  powers  of  public  control  are  divided, 
but  that,  fundamentally,  the  former  is  supreme,  and  that, 
whenever  a  conflict  of  authority  arises,  the  final  decision 
and  supremacy  is  with  the  Federal  power  itself. 

In  a  Confederacy  which  is,  as  we  have  seen,  a  league  of 
sovereign  States,  such  coercion  as  it  may  be  necessary  for 
the  central  power  to  apply,  may,  in  certain  cases,  be  di- 
rected against  the  States  as  such.  In  a  Federal  State, 
however,  such  as  the  United  States  is  now  agreed  to  be, 
the  supremacy  of  the  national  authority  is  never  main- 
tained by  direct  action  against  its  member  Common- 
wealths, but  is  exhibited  in  its  authority  to  execute  its 
will  upon  all  persons  subject  to  its  jurisdiction,  anything 
in  the  Constitution  or  laws  of  any  State  to  the  contrary 


2  Despite  the  fact  that  as  a  matter  of  strict  terminology  the  terms 
Government  and  State  are  to  be  distinguished,  the  use  of  the  ex- 
pressions "National  Government"  and  "Central  Government"  as 
synonymous  with  "United  States"  as  indicating  the  body-politic 
possessing  the  national  sovereignty  is  so  common  that  this  usage 
will  be  followed  in  this  treatise. 


8  PRINCIPLES  OF  THE  CONSTITUTIONAL 

notwithstanding,  and  irrespectively  of  what  may  be  the 
opinions  and  efforts  of  those  exercising  the  political  pow- 
ers of  these  States. 

The  individual  Commonwealths,  having  a  political 
status  only  as  members  of  the  Union,  have  not  the  legal 
power  to  place  themselves,  as  political  bodies,  in  opposi- 
tion to  the  national  will.  Their  legislatures,  their  courts 
or  their  executive  officials  may  attempt  acts  unwarranted 
by  the  Federal  Constitution  or  Federal  law,  and  they 
may  even  command  generally  that  their  citizens  shall 
refuse  obedience  to  some  specified  Federal  laws  or  to  the 
Federal  authorities  generally,  but  in  all  such  cases  such 
acts  are,  legally  viewed,  simply  void,  and  all  individuals 
obeying  them  subject  to  punishment  as  offenders  against 
national  law.  The  fact  that  their  respective  States  have 
directed  them  to  refuse  obedience  or  offer  resistance  to 
the  execution  of  the  Federal  laws  can  afford  them  no  im- 
munity from  punishment,  for  no  one  can  shelter  himself 
behind  an  unconstitutional  measure  which  is,  in  truth, 
not  a  law  at  all,  but  only  an  unsuccessful  attempt  at 
a  law.3 

Constitutional  law 

In  the  broadest  sense  of  the  term,  every  politically 
organized  society  possesses  a  Constitution.  By  this  is 
meant  that  it  possesses  a  body  of  rules  or  principles  which 
determine  the  form  of  government  which  shall  exist,  and 
allot  to  its  various  departments  or  officials  their  respective 
powers.  When  these  rules  are  fairly  definite,  are  recognized 
by  those  in  authority  as  controlling,  and  are  supported  by 
a  public  opinion  sufficient  in  force  to  offer  a  considerable 
guarantee  that  they  will  be  obeyed,  the  State  is  said  to 


3  See  for  a  correct  statement  of  this  principle  the  first  annual  mes- 
sage of  President  Lincoln. 


LAW  OF  THE  UNITED  STATES  9 

have  a  constitutional  government.  Thus,  if  the  political 
rule  is  monarchical  in  character,  the  government  is  said 
to  be  a  constitutional  monarchy.  But,  in  an  exact  sense 
of  the  term,  every  politically  organized  society  may  be 
said  to  possess  a  Constitution,  written  or  unwritten. 

In  order  that  the  rules  that  regulate  the  distribution  and 
exercise  of  political  authority  may  be  better  and  more 
exactly  known,  they  are,  in  most  modern  States,  reduced 
to  definite  written  statement;  and  in  order  that,  as  thus 
stated,  they  may  have  an  additional  binding  force,  they 
are  usually  drafted  and  adopted  in  some  especially  formal 
and  solemn  manner,  and,  in  most  cases,  special  provision 
is  made  as  to  the  manner  in  which  they  may  be  revised 
and  additions  made  to  them.  Ordinarily  this  method 
of  revision  and  amendment  is  made  considerably  more 
difficult  than  is  the  enactment  of  ordinary  legislative 
measures. 

Among  the  modern  great  nations  Great  Britain  stands 
alone  as  a  State  without  a  formal  written  instrument 
of  government.  She  has,  however,  a  government  con- 
trolled by  a  definite  body  of  constitutional  rules  and 
practices,  many  of  these  being  embodied  in  important 
written  documents,  such  as  the  Magna  Charta,  the  Bill  of 
Rights,  the  Habeas  Corpus  Act,  etc.,  but,  however  polit- 
ically sacrosanct  these  principles  thus  definitely  stated, 
and  however  controlling  in  practice  the  great  body  of 
her  written  public  law,  the  essential  characteristic  of 
England's  constitutional  system  is  that  she  is  ruled  by  a 
legally  omnipotent  Parliament  which  has  the  legislative 
power  to  change,  by  ordinary  statutory  enactment,  any 
or  every  feature  and  rule  of  her  governmental  organiza- 
tion. In  this  last  respect  it  is  to  be  observed,  however, 
that,  legally  speaking,  Great  Britain  does  not  in  fact 
stand  upon  a  different  footing  from  those  States  which 
have  adopted  written  instruments  of  government  the 


10  PRINCIPLES  OF  THE  CONSTITUTIONAL 

amendment  or  final  interpretation  of  which  is  within  the 
control  of  the  legislative  branch. 

The  adoption  of  written  Constitutions  does  not  prevent 
the  existence  and  development  of  bodies  of  unwritten 
constitutional  law;  for,  however  comprehensive  these 
fundamental  documents  may  be,  there  inevitably  grows 
up  a  considerable  body  of  unwritten  constitutional  prac- 
tices as  fixed  and,  for  all  practical  purposes,  as  obligatory 
as  those  provided  for  in  the  written  instruments.  Further- 
more, in  any  event,  a  written  Constitution  requires  inter- 
pretation, and  when  the  power  of  interpretation  is  confided 
to  the  courts  there  necessarily  develops  in  the  decisions 
which  are  rendered  a  constantly  increasing  body  of  rules 
and  principles  which  in  the  aggregate  compose  the  con- 
stitutional law  of  the  country.  Thus,  in  the  United 
States,  in  the  more  than  two  hundred  volumes  of  the  de- 
cisions of  the  Federal  Supreme  Court,  not  to  speak  of  the 
reported  opinions  of  the  State  and  lower  Federal  courts, 
a  complex  system  of  constitutional  jurisprudence  has 
developed  which  requires  the  preparation  of  lengthy  and 
elaborate  commentaries  for  its  statement  and  explanation. 

From  what  has  been  said  it  is  seen  that  if  we  are  to 
seek  a  definition  of  constitutional  law,  valid  for  all  coun- 
tries, and  which  will  distinguish  it  from  other  classes  of 
law,  we  cannot  accept  as  its  peculiar  characteristic  the 
fact  that  it  is  found  embodied  in  written  and  formally 
adopted  and  promulgated  documents  denominated  Con- 
stitutions. Nor  can  we  select  as  its  distinguishing  rrfark 
the  fact  that  it  is  of  superior  legal  validity.  For,  not  to 
speak  of  England,  which,  according  to  such  a  description, 
could  not  be  said  to  have  any  constitutional  law  at  all, 
we  are  met  by  the  fact  that  in  no  country  other  than  our 
own  is  this  legal  superiority  of  constitutional  law  fully 
recognized.  For  a  general  definition  of  constitutional  law 
we  are  thus  thrown  back  upon  its  subject-matter,  and  are 


LAW  OF  THE  UNITED  STATES  11 

obliged  to  content  ourselves  with  the  description  with 
which  we  started,  namely,  that  it  embraces  all  those  rules 
and  principles  which  determine  the  form  of  governmental 
organization  of  a  State,  and  allot  to  its  several  organs  or 
departments  their  respective  powers. 

This,  for  the  purpose  of  general  political  theory,  is  a 
correct  definition  of  constitutional  law.  But  it  is  not  a 
definition  which  is  adequate  for  a  nation,  such  as  the 
United  States,  living  under  written  Constitutions  which 
give  to  the  courts  their  final  interpretation,  and  which 
obligates  them,  in  cases  of  conflict  between  these  written 
constitutional  provisions  and  ordinary  statutory  laws,  to 
give  precedence  to  the  former.  Under  this  system  con- 
stitutional law  must  be  said  to  embrace  all  law  that, 
irrespective  of  its  substance,  is  contained  within  the  four 
corners  of  written  instruments  of  government  denominated 
Constitutions.  Were  these  constitutions  wholly  devoted 
to  the  creation  of  governmental  machinery  and  the  allot- 
ment of  powers  to  its  constituent  parts,  the  law  embraced 
within  this  formal  definition  would  substantially  coincide 
with  that  included  within  the  definition  stated  above  as 
satisfactory  to  the  political  theorist.  But,  in  fact,  many 
of  our  State  Constitutions  go  far  beyond  this  and  include 
provisions  which,  viewed  with  regard  to  the  matters  to 
which  they  relate,  properly  belong  within  the  field  of 
private  statutory  law. 

The  Federal  Constitution  has  of  course  a  double  func- 
tion to  perform.  It  has  not  only  to  provide  for  a  govern- 
mental machinery  for  the  Union,  and  to  distribute  its 
powers,  but  to  delimit  the  respective  competencies  of  the 
Nation  and  of  the  individual  States.  Regarded  as  an 
instrument  for  this  second  purpose  it  is  a  grant  of  power 
giving  to  the  United  States  those  powers  which  it  is  to 
possess,  and  leaving  with  the  States,  with  but  a  few  enu- 
merated exceptions,  those  powers  which  are  not  so  granted, 


12  PRINCIPLES  OF  THE  CONSTITUTIONAL 

The  State  Constitutions  are,  upon  the  contrary,  primarily 
instruments  of  limitation.  In  so  far  as  they  are  not  de- 
voted to  providing  machineries  of  government,  they  have 
for  their  end  and  aim  the  placing  of  limitations  upon  the 
governments  which  they  create,  which  governments  are 
held  to  possess  all  powers  not  denied  to  them  by  the  Fed- 
eral Constitution  or  specifically  withdrawn  from  them  by 
the  respective  Constitutions  to  which  they  owe  their  origin. 
These  State  constitutional  limitations  are  for  the  most 
part  upon  the  legislatures,  and  the  increase  in  their  num- 
ber which  the  more  recently  adopted  Constitutions  have 
shown  has  evinced  a  growing  distrust  upon  the  part  of 
the  people  of  their  legislative  representatives.  This  dis- 
trust has  also  been  shown  in  some  instances  by  the  inser- 
tion of  provisions  for  the  referendum  and  the  popular 
initiation  of  laws.  But  not  a  few  of  these  added  consti- 
tutional clauses  have  been  due  to  a  distrust  of  the  courts, 
the  aim  being  so  explicitly  to  authorize  legislation  as  to 
render  it  practically  impossible  for  the  courts  to  interpose 
the  objection  of  unconstitutionality  as  tested  by  the  State 
Constitutions.4 

The  American  doctrine  of  the  supremacy  of  the  Constitution 

It  has  already  been  indicated  that  in  the  United  States 

4  This,  however,  still  leaves  it  possible  for  the  State  courts  to 
hold  State  statutes  void  upon  the  ground  that  they  are  in  conflict 
with  the  Federal  Constitution,  and  especially  with  that  clause  of 
the  Fourteenth  Amendment  which  declares  that  "no  State  shall 
deprive  any  person  of  life,  liberty  or  property  without  due  process 
of  law,  nor  deny  to  any  person  within  its  jurisdiction  the  equal  pro- 
tection of  the  laws."  In  those  cases  in  which  its  courts  so  hold, 
there  is,  under  existing  statutes,  no  right  of  appeal  by  writ  of  error 
to  the  Supreme  Court  of  the  United  States,  for,  by  the  twenty-fifth 
section  of  the  judiciary  act,  which  is  still  in  force,  that  tribunal  is 
given  jurisdiction  to  review  decrees  of  the  State  courts,  by  writs  of 
error,  only  in  those  cases  in  which  a  Federal  right,  privilege,  or  im- 
munity has  been  claimed  and  denied. 


LAW  OF  THE  UNITED  STATES  13 

the  courts  are  the  final  interpreters  of  the  constitutional 
powers  not  only  of  executive  and  administrative  offi- 
cers but  of  the  legislatures  themselves.  Independently  of 
express  statement  to  this  effect  in  the  Constitution  it 
has  become  an  established  principle  that  no  statute  is 
valid  if  inconsistent  with  the  provisions  of  the  Consti- 
tution from  which  the  enacting  legislature  derives  its 
powers.  So,  similarly,  no  act  or  order  of  an  executive 
official  is  legal  for  the  performance  or  issuance  of  which 
a  constitutional  authorization  cannot  be  shown.  A  State 
statute  inconsistent  with  the  Constitution  of  that  State 
is,  therefore,  invalid,  and  an  act  of  Congress  not  war- 
ranted by  the  provisions  of  the  Federal  Constitution  is 
similarly  void.  In  addition  to  being  subordinate  to  the 
provisions  of  the  State  Constitution,  every  act  of  a  State 
official  or  organ  must  conform  to  the  requirements  of  the 
Federal  Constitution,  and  this  applies  as  well  to  the  pro- 
visions of  the  Constitution  of  the  State  as  to  the  statutes 
of  its  legislature. 

This  principle  that  statutory  law  in  order  to  be  valid 
must  be  in  conformity  with  constitutional  requirements  is 
a  product  of  American  jurisprudence,  and  peculiar  to  it. 
In  this  country  alone  is  the  written  constitutional  law  not 
only  morally,  but  legally  restrictive  of  the  lawmaking 
branch  of  the  government,  and  the  final  interpretation  of 
these  restrictions,  express-  and  implied,  vested  in  the 
judicial  department.5 

6  Professor  A.  V.  Dicey  in  his  well-known  treatise,  The  Law  of 
the  Constitution  (7th  ed.,  1908,  note  vii,  Appendix),  calls  attention 
to  the  three  different  meanings  of  the  phrase  "unconstitutional 
law"  as  employed  in  England,  France,  and  the  United  States.  In 
England  it  means  simply  that,  in  the  opinion  of  the  person  using  it, 
the  measure  is  opposed  to  the  spirit  of  the  unwritten  principles  of 
constitutional  practice,  but  not  that  it  is,  for  that  reason,  void  of 
legal  force.  In  Franco  the  term  moans  that  the  act  is  contrary  to 
the  provisions  of  the  written  Constitution,  but  not  that  the  courts 


14  PRINCIPLES  OF  THE  CONSTITUTIONAL 

One  further  point  with  reference  to  the  nature  of  the 
power  exercised  by  courts  when  passing  upon  the  con- 
stitutional validity  of  laws  requires  mention.  This  is  that 
the  point  at  issue  between  the  legislature  and  the  courts,  or 
between  an  appellate  tribunal  and  the  courts  whose  de- 
crees it  reviews,  is  often  a  question  not  as  to  the  mean- 
ing to  be  given  to  constitutional  provisions,  but  as  to  the 
correctness  of  certain  findings  of  fact.  Thus,  to  illustrate, 
a  State  legislature  having  prescribed  a  maximum  rate 
which  railroads  may  charge,  or  established  a  rule  as  a 
proper  police  regulation,  it  may  become  necessary  for  the 
court  to  determine  whether  in  fact  the  prescribed  rate 
is  so  low  as  to  be  confiscatory  and  therefore  to  amount 
to  a  taking  of  property  without  due  process  of  law,  or 
whether  the  police  regulation  is  in  fact,  all  the  circum- 
stances involved  being  considered,  a  reasonable  one  and 
the  consequent  limitation  upon  the  private  rights  of  prop- 
erty or  freedom  of  contract  justified  as  such.  Here  there 
is  no  dispute  as  to  the  meaning  of  the  constitutional 
provision  with  reference  to  the  taking  of  property  with- 
out due  process  of  law,  nor  any  denial  of  the  right  of  the 
Federal  Supreme  Court  to  hold  void  State  laws  which 
violate  this  provision.  The  only  dispute  or  question  in- 
volved is  whether  in  fact  the  given  rate  is  confiscatory, 
or  whether  the  police  regulation  is  justified  as  a  legitimate 
exercise  of  the  so-called  "Police  Power." 

This  American  doctrine  as  to  the  invalidity  of  uncon- 
stitutional legislative  acts  had  received  a  certain  degree 

will  refuse  to  recognize  its  legal  validity.  The  word  "unconstitu- 
tional," says  Dicey,  "would  probably  though  not  of  necessity  be, 
when  employed  by  a  Frenchman,  a  term  of  censure."  In  the  United 
States  an  unconstitutional  measure  is  one  not  warranted  by  the 
written  instruments  of  government  of  the  States  or  of  the  United 
States,  and,  as  such,  is  held  not  to  be  a  law  at  all.  It  is  an  ultra  vires 
measure,  and  at  most  only  a  vain  attempt  upon  the  part  of  the 
enacting  body  to  create  a  law. 


LAW  OF  THE  UNITED  STATES  15 

of  acceptance,  though  not  without  protest,  in  the  courts 
of  the  States  prior  to  1803,  but  it  was  first  in  that  year 
in  the  great  case  of  Marbury  v.  Madison  6  that  the  Supreme 
Court  of  the  United  States  by  its  acceptance  of  it,  and 
Chief  Justice  Marshall  by  the  opinion  which  he  rendered 
in  supp'ort  of  it,  finally  established  the  doctrine  as  a  fun- 
damental principle  of  American  constitutional  jurispru- 
dence. It  is  true  that  Marshall's  reasoning  is  defective 
in  so  far  as  it  is  based  on  the  idea  that  this  judicial  power 
necessarily  exists  in  a  government  organized  under  a 
written  Constitution,  but  he  is  upon  firm  ground  when  he 
points  out  that  the  Federal  judicial  power  is  extended  to 
"all  cases,  in  law  or  equity,  arising  under  the  Constitu- 
tion," and  that,  in  the  exercise  of  this  jurisdiction,  thus 
specifically  given,  it  is  necessary  that  in  cases  involving 
conflicts  between  statutory  and  constitutional  provisions, 
the  courts  should  give  effect  to  the  Constitution  under 
which  they  are  organized. 

Constitutionality  of  State  laws 

When  it  is  said  that  the  power  vested  in  the  courts  of 
this  country  to  hold  void  measures  enacted  by  the  law- 
making  branch  of  the  governments  of  which  they  them- 
selves constitute  the  judicial  branch,  is  a  unique  one,  no 
reference  is  had  to  the  authority  of  our  judicial  tribunals 
to  refuse  to  recognize  the  validity  of  those  acts  of  the 
legislatures  of  the  States  which  are  in  conflict  with  the 
provisions  of  the  Federal  law,  for  this  is  a  right  determined 
by  the  supremacy  of  national  law  over  State  law.  This 
supremacy  is  clearly  stated  in  that  provision  of  Article  VI 
of  the  Federal  Constitution  which  declares  that  "This 
Constitution,  and  the  laws  of  the  United  States  which 
shall  be  made  in  pursuance  thereof,  and  all  treaties  made, 
or  which  shall  be  made,  under  the  authority  of  the  United 

•  1  Cr.  137;  2  L.  ed.  60.      % 


16  PRINCIPLES  OF  THE  CONSTITUTIONAL 

States,  shall  be  the  supreme  law  of  the  land;  and  the  judges 
in  every  State  shall  be  bound  thereby,  anything  in  the 
Constitution  or  laws  of  any  State  to  the  contrary  not- 
withstanding." It  was,  indeed,  for  a  time  strenuously 
argued  by  adherents  of  the  States'  Rights  school  that 
the  right  of  final  determination  as  to  whether  there  is  a 
conflict  between  State  and  Federal  law  was  possessed  by 
the  State  courts  as  well  as  by  the  Federal  Supreme  Court, 
in  cases  arising  therein,  but,  the  Federal  supremacy  being 
conceded  the  right  to  hold  State  laws  invalid  because  con- 
trary to  the  Federal  Constitution  and  to  the  laws  passed 
and  treaties  entered  into  in  pursuance  thereof  is  not  a 
different  power  from  that  known  to  or  exercised  by  all 
constitutional  States,  when  dealing  with  the  acts  or  or- 
dinances of  subordinate  lawmaking  bodies,  as  for  example 
of  colonial  or  local  legislatures,  or,  indeed,  of  adminis- 
trative agencies  with  reference  to  the  rules  and  regulations 
issued  by  them.  Here  the  general  doctrine  of  principal 
and  agent  applies.  When,  however,  we  turn  to  the  power 
of  our  Federal  courts  to  hold  void  the  acts  of  Congress, 
or  of  the  State  courts  to  refuse  recognition  to  the  acts  of 
the  legislatures  of  their  respective  States,  the  question  is 
quite  another  one.  Here  we  have  the  exercise  by  the 
judicial  branch  of  a  government  of  the  right  to  place  its 
interpretation  of  the  power  granted  by  a  written  Constitu- 
tion above  the  interpretation  which  the  legislative  branch 
of  that  same  government  has  given  it.  In  all  countries 
other  than  our  own  the  legislative  interpretation  is  recog- 
nized as  decisive. 

The  general  principle  is  that  a  law  held  void,  because 
unconstitutional,  is  as  though  it  had  never  been.  It  is 
declared  never  to  have  been  a  law,  and  hence  that  no 
legal  rights  can  be  claimed  under  it.  If,  however,  by  a 
later  decision,  the  court  re  verses- its  former  opinion,  and 
upholds  the  law,  it  is  considere'd  as  having  been  in  force 


LAW  OF  THE  UNITED  STATES  17 

and  valid  from  the  time  of  its  enactment.  In  practice, 
as  a  matter  of  justice  and  of  expediency,  these  principles 
have  at  times  been  departed  from,  but  in  general  the  rule 
is  as  stated.7 

The  expediency  of  giving  this  power  to  the  courts  is 
of  course,  open  to  discussion.  That  it  is  a  tremendous 
power  cannot  be  questioned.  As  said  by  Bishop  Hoadly 
years  before  our  Constitution  was  adopted,  "whoever 
hath  an  absolute  authority  to  interpret  any  written 
or  spoken  laws,  it  is  he  who  is  truly  the  law-giver  to  all 
intents  and  purposes,  and  not  the  person  who  first  wrote 
or  spoke  them."  It  would  seem  clear  that  by  training, 
by  tenure  of  office,  and  by  the  character  of  the  functions 
which  they  perform,  the  judges  of  the  Federal  Supreme 
Court  and  of  the  highest  courts  of  the  States  are  less 
likely  to  be  hurried  on,  under  the  pressure  of  passion  or 
of  temporary  exigency,  to  such  a  violation  of  the  spirit, 
or  to  such  a  strained  construction  of  the  language,  of  the 
Constitution  as  will  deprive  that  instrument  of  its  true 
restraining  character.  But,  upon  the  other  hand,  there 
is  the  danger,  which  not  a  few  persons  think  has  in  some 
instances  become  a  reality,  that  the  judges,  not  being  in 
close  touch  with  or  responsible  to  public  opinion,  will  as- 
sume an  unnecessarily  strict  or  biased  attitude  towards 
the  constitutional  powers  of  the  legislature,  and  especially 
towards  those  relating  to  what  is  known  as  the  police 
powers  of  the  State.  In  general,  however,  it  is  to  be 
said  that  the  courts,  have,  by  the  rules  which  they  have 
laid  down  for  themselves  with  reference  to  the  validity 
of  legislative  acts,  kept  their  authority  within  just  and  ex- 
pedient limits.  These  rules  are  considered  in  Chapter  III. 

7  Norton  v.  Shelby  Co.,  118  U.  S.  425;  6  Sup.  Ct.  Rep.  1121;  30 
L.  ed.  178.  But  see  Gelpcke  v.  Dubuque,  1  Wall.  175;  17  L.  ed.  520; 
and  exceptions  coming  under  the  doctrine  of  de  facto  officers  and 
corporations  acting  under  unconstitutional  statutes. 

2 


CHAPTER  II 

THE    SUPREMACY   OF   FEDERAL   AUTHORITY 

Federal  supremacy 

The  supremacy  of  the  Federal  Government,  when 
operating  within  its  constitutional  sphere,  over  all  per- 
sons and  bodies  politic  within  its  territorial  limits,  is  no 
longer  open  to  question.  That  the  extent  of  this  Federal 
constitutional  sphere  of  action  is  to  be  determined  in  the 
last  resort  by  the  Federal  Supreme  Court,  is  equally  well 
settled. 

The  maintenance  of  this  supremacy  unimpaired,  while 
at  the  same  time  preserving  to  the  States  their  proper 
autonomy  and  independence  of  action,  has,  however,  been 
a  difficult  task;  and,  so  long  as  the  Federal  form  is  retained, 
this  task  will  continue  to  tax  to  the  utmost  the  legal  and 
political  abilities  of  our  courts  and  political  bodies.  With 
a  quite  proper  motive  those  who  have  controlled  the  pub- 
lic actions  of  the  States,  and  those  who  have  guided  the 
activities  of  the  United  States,  have  sought  for  their  re- 
spective governments  the  greatest  possible  constitutional 
power  and  independence,  and,  therefore,  have  not  hesi- 
tated to  occupy  debatable  territory.  Thus,  without  there 
being  any  denial  of  the  supremacy  of  the  Federal  law, 
when  operating  within  its  proper  field,  or  of  the  right  of 
the  Federal  Supreme  Court  to  determine,  in  final  resort, 
the  extent  of  that  proper  field,  frequent  conflicts  have 
resulted.  These  conflicts  in  their  many  and  varied  forms 
furnish  much  of  the  material  for  the  present  treatise,  and 
they  will  be  severally  considered  in  their  proper  places. 
18 


LAW  OF  THE  UNITED  STATES  19 

For  the  manner  in  which  the  Federal  supremacy  is  in 
practice  maintained,  especial  reference  may,  however,  be 
made  to  the  chapters  and  sections  dealing  with  the  im- 
munity of  Federal  agencies  from  State  taxation;  the 
power  of  the  Supreme  Court  to  review  decisions  -of 
State  courts  adverse  to  privileges,  rights,  and  immuni- 
ties claimed  under  the  Federal  Constitution,'  treaties 
or  laws;  the  removal  of  cases  from  State  to  Federal 
courts;  the  issuance  by  Federal  courts  of  writs  of  habeas 
corpus  directed  to  State  officials;  and  the  independence 
of  Federal  courts  from  State  interference  or  control.  It 
will,  however,  be  appropriate  to  refer  here  to  certain 
cases  in  which  the  supremacy  of  the  Federal  authority 
has  been  broadly  stated  and  under  circumstances  which 
have  given  especial  weight  and  importance  to  the  as- 
sertion. 

In  general  it  may  be  stated  that  in  no  instance  has  the 
Supreme  Court  failed  to  assert  the  supremacy  of  the 
Federal  power  when  its  authority  has  been  attacked  by 
the  States.  Only  four  years  after  the  adoption  of  the 
Constitution  the  court  upheld  its  right  under  the  Con- 
stitution as  it  then  stood,  i.  e.,  before  the  adoption  of  the 
Eleventh  Amendment,  to  entertain  a  suit  against  the 
State  of  Georgia  brought  by  a  citizen  of  another  State.1 
The  next  year  the  court  clearly  intimated  that  it  would 
disregard  a  State  law  in  conflict  with  a  Federal  treaty. 
The  supremacy  of  Federal  law  was  again  asserted  the  next 
year  in  Penhallow  v.  Doane,2  and  in  1796  in  Ware  v. 
Hylton.3  In  Calder  v.  Bull 4  the  doctrine  was  definitely 
asserted,  though  its  application  was  not  found  necessary, 
that  a  State  law  in  conflict  with  the  Federal  Constitu- 


1  Chisholm  v.  Georgia,  2  Ball.  419;  1  L.  ed.  440. 

2  3  Dall.  54;  1  L.  ed.  507. 

3  3  Dall.  199;  1  L.  ed.  568. 

4  3  Dall.  386;  1L.  ed.  648. 


20  PRINCIPLES  OF  THE  CONSTITUTIONAL 

tion  would  be  disregarded.  In  1809,  in  United  States  v. 
Peters  5  this  action  became  necessary  and  the  doctrine 
was  applied,  Chief  Justice  Marshall,  speaking  for  the 
unanimous  court,  saying:  "The  State  of  Pennsylvania  can 
possess  no  constitutional  right  to  resist  the  legal  process 
which  may  be  directed  in  this  cause."  "It  will  be  readily 
conceived,"  the  great  Chief  Justice  concludes,  "that  the 
order  which  this  court  is  enjoined  to  make  by  the  high 
obligations  of  duty  and  of  law,  is  not  made  without 
extreme  regret  at  the  necessity  which  has  induced  the 
application.  But  it  is  a  solemn  duty,  and,  therefore, 
must  be  performed.  A  peremptory  mandamus  must  be 
awarded." 

In  1810  and  1812  State  laws  were  again  held  void  by 
the  Supreme  Court  because  in  conflict  with  the  Federal 
Constitution.6  Finally,  in  the  great  case  of  McCulloch 
v.  Maryland,7  decided  in  1819,  not  only  was  a  State  law 
held  void,  but  the  general  doctrine  declared  that  the 
State  cannot,  in  the  exercise  of  its  reserved  powers,  even 
of  the  highest  of  them,  interfere  with  the  operation  of  a 
Federal  agency  though  that  agency  be  one  of  conve- 
nience only  and  not  of  necessity  to  the  United  States. 
"The  States  have  no  power,"  it  was  declared,  "by  taxa- 
tion or  otherwise,  to  retard,  impede,  burden  or  in  any 
manner  control  the  operations  of  the  constitutional  laws 
enacted  by  Congress  to  carry  into  execution  the  powers 
vested  in  the  Federal  Government.  This  is,  we  think, 
the  unavoidable  consequence  of  that  supremacy  which 
the  Constitution  has  declared." 

In  Martin  v.  Hunter's  Lessee,8  decided  in'  1816,  and 


5  5  Cr.  115;  3  L.  ed.  53. 

6  Fletcher  v.  Peck,  6  Cr.  87;  3  L.  ed.  162;  New  Jersey  v.  Wilson, 
7  Cr.  164;  3  L.  ed.  303. 

7  4  Wh.  316;  4  L.  ed.  579. 
8 1  Wh.  304;  4  L.  ed.  97. 


LAW  OF  THE  UNITED  STATES  21 

in  Cohens  v.  Virginia,9  decided  in  1821,  the  Supreme 
Court  upheld  its  authority  to  review,  on  writs  of  error, 
decisions  of  State  courts  adverse  to  alleged  Federal  rights, 
the  exercise  of  this  jurisdiction  having  been  provided  for 
by  the  famous  twenty-fifth  section  of  the  judiciary  act 
of  1789.  Justice  Story  who  spoke  for  the  court,  said: 
"The  courts  of  the  United  States  can,  without  question, 
revise  the  proceedings  of  the  executive  and  legislative 
authorities  of  the  States,  and  if  they  are  found  to  be 
contrary  to  the  Constitution  may  declare  them  to  be  of 
no  legal  validity.  Surely,  the  exercise  of  the  same  right 
over  judicial  tribunals  is  not  a  higher  or  more  dangerous 
act  of  sovereign  power." 

In  Cohens  v.  Virginia,  Chief  Justice  Marshall,  speaking 
for  the  court,  said:  "If  it  could  be  doubted,  whether  from 
its  nature  it  [the  National  Government]  were  not  supreme 
in  all  cases  where  it  is  empowered  to  act,  that  doubt 
would  be  removed  by  the  declaration  that  'this  Con- 
stitution and  the  laws  of  the  United  States  which  shall 
be  made  in  pursuance  thereof,  and  all  treaties  made  or 
which  shall  be  made  under  the  authority  of  the  United 
States,  shall  be  the  supreme  law  of  the  land;  and  the 
judges  in  every  State  shall  be  bound  thereby,  anything 
in  the  Constitution  or  laws  of  any  State  to  the  contrary 
notwithstanding.'  This  is  the  authoritative  language  of 
the  American  people,  and,  if  the  gentlemen  please,  of 
the  American  States.  .  .  .  The  people  made  the  Con- 
stitution and  the  people  can  unmake  it.  ...  But  this 
supreme  and  irresistible  power  to  make  or  to  unmake 
resides  only  in  the  whole  body  of  the  people;  not  in  any 
subdivision  of  them.  The  attempt  of  any  of  the  parts 
to  exercise  it  is  usurpation,  and  ought  to  be  repelled  by 
those  to  whom  the  people  have  delegated  the  power  of 


9  6  Wh.  264;  5  L.  ed.  257. 


22  PRINCIPLES  o*  THE  CONSTITUTIONAL 

repelling  it.  ...  The  framers  of  the  Constitution  wer? 
indeed  unable  to  make  any  provisions  which  should  pro- 
tect that  instrument  against  a  general  combination  of 
the  States,  or  of  'the  people  for  its  destruction;  and,  con- 
scious of  this  inability,  they  have  not  made  the  attempt. 
But  they  were  able  to  provide  against  the  operation  of 
measures  adopted  in  any  one  State,  whose  tendency 
might  be  to  arrest  the  execution  of  the  laws;  and  this  it 
was  the  part  of  widsom  to  attempt.  We  think  they  have 
attempted  it." 

The  importance  of  the  doctrine  thus  emphatically  de- 
clared in  these  two  cases  it  is  impossible  to  exaggerate. 
This  the  upholders  of  States'  Rights  clearly  saw,  and 
Calhoun  later  wrote:  "The  effect  of  this  is  to  make  the 
government  of  the  United  States  the  sole  judge,  in  the 
last  resort,  as  to  the  extent  of  its  powers,  and  to  place 
the  States  and  their  separate  governments  and  institu- 
tions at  its  mercy.  It  would  be  a  waste  of  time  to  under- 
take to  show  that  an  assumption  that  would  destroy  the 
relation  of  co-ordinates  between  the  government  of  the 
United  States  and  those  of  the  several  States, — which 
would  enable  the  former,  at  pleasure,  to  absorb  the  re- 
served powers  and  to  destroy  the  institutions,  social  and 
political,  which  the  Constitution  was  ordained  to  estab- 
lish and  protect,  is  wholly  inconsistent  with  the  Federal 
theory  of  government,  though  in  perfect  accordance  with 
the  national  theory.  Indeed,  I  might  go  further  and 
assert,  that  it  is,  of  itself,  all  sufficient  to  convert  it  into 
a  national,  consolidated  government."  10 

During  the  same  year  that  the  case  of  McCulloch  v. 
Maryland  was  decided,  two  other  State  laws  were  held 
void  by  the  Supreme  Court :  one  of  New  York,  in  Sturges 


10  Discourse  on  the  Constitution  and  Government  of  the  United  States, 
Works,  I,  338. 


LAW  OF  THE  UNITED  STATES  23 

v.  Crowninshield,11  and  one  of  New  Hampshire,  in  Dart- 
mouth College  v.  Woodward.12 

In  1824,  in  Osborn  v.  Bank  of  the  United  States  13  the 
attempt  of  Ohio  to  tax  the  Federal  bank  was  held  uncon- 
stitutional. In  1829,  in  Weston  v.  Charleston,14  a  munic- 
ipal tax  on  stock  of  the  United  States  held  by  the  citizens 
of  Charleston  was  held  invalid.  In  1824,  in  the  case  of 
Gibbons  v.  Ogden,15  was  begun  that  long  line  of  decisions 
which  has  established  the  power  of  the  United  States  to 
regulate  interstate  commerce  free  from  State  interference 
— an  authority  the  exercise  of  which  has  done  so  much 
to  increase  the  actual  power  and  influence  of  the  National 
Government.  In  this  case  a  law  of  the  State  of  New 
York  was  held  void. 

In  1823,  a  law  of  Kentucky  wa,s  held  of  no  force  by  the 
Federal  court,16  and  in  1830  a  law  of  Missouri  received 
similar  treatment.17  In  1832  in  Worcester  v.  Georgia,18 
an  act  of  the  State  of  Georgia  was  held  void,  but  the 
Supreme  Court  failed  to  secure  the  release  of  the  plain- 
tiff who  had  been  imprisoned  under  it.  This  failure  was 
due,  however,  not  to  the  weakness  on  the  part  of  the 
Federal  Government  but  to  the  refusal  of  the  President 
to  lend  his  executive  aid. 

From  1835  to  the  outbreak  of  the  Civil  War  there  can 
be  no  question  but  that  the  Supreme  Court  of  the  United 
States  exerted  a  much  less  potent  influence  in  solidifying 
and  expanding  the  Federal  power  than  it  had  exercised 


u4Wh.  122;  4  L.  ed.  529. 
124Wh.  518 ;  4  L.  ed.  629. 

13  9  Wh.  738;  6  L.  ed.  204. 

14  2  Pet.  449;  7  L.  ed.  481. 
159Wh.  1;6L.  ed.  23. 

16  Green  v.  Biddle,  8  Wh.  1;  5  L.  ed.  547. 

17  Craig  v.  Missouri,  4  Pet.  410;  7  L.  ed.  903. 

18  6  Pet.  515 ;  8  L.  ed.  483. 


24  PRINCIPLES  OF  THE  CONSTITUTIONAL 

during  the  thirty-five  years  preceding.  Regarding  the 
attitude  of  the  Supreme  Court  during  this  period,  the 
important  fact  is,  however,  to  be  noticed  that,  though  it 
threw  the  weight  of  its  influence  on  the  side  of  the  States 
so  far  as  concerned  a  liberal  interpretation  of  the  powers 
reserved  to  them  by  the  Constitution,  not  once,  in  the 
slightest  measure,  did  it  during  these  years,  any  more 
than  it  had  done  in  the  years  preceding,  intimate  that  the 
actual  legal  and  political  supremacy  was  not  vested  in  the 
National  Government.  The  position  of  Taney  and  of  the 
court  was  clearly  shown  upon  this  point  in  the  judgment 
rendered  and  in  the  opinion  delivered  in  the  case  of 
Ableman  v.  Booth,19  decided  in  1859.  The  facts  of  this 
case  were  these:  Booth  had  been  tried  in  a  lower  Federal 
court  for  a  violation  of  the  Federal  fugitive  slave  law  of 
1850,  and  had  been  found  guilty  and  sentenced  to  im- 
prisonment. The  highest  court  of  the  State  of  Wiscon- 
sin, however,  stepped  in,  disregarded  this  judgment,  and 
released  the  prisoner.  Not  only  this  but  it  went  on  to 
declare  that  its  decision,  thus  rendered,  was  subject  to 
no  appeal  and  was  conclusive  upon  all  the  courts  of  the 
United  States;  and  when  a  writ  of  error  from  the  United 
States  Supreme  Court  directed  to  the  Wisconsin  court 
was  issued,  the  clerk  of  the  State  court  replied  to  it  that 
he  had  been  directed  to  make  no  return,  and  refused  to 
make  up  and  send  a  record  of  the  case  to  the  Federal 
court.  Thereupon  the  Attorney-General  of  the  United 
States  filed  in  the  Supreme  Court  of  the  United  States  an 
uncertified  record  which  it  was  ordered  should  be  received 
as  though  returned  by  the  clerk  of  the  court  of  Wisconsin. 
Having  thus  gotten  the  case  before  it,  despite  the  resist- 
ance of  the  State,  the  decision  of  the  Supreme  Court 
thereupon  was  an  emphatic  condemnation  of  the  State's 


19  21  How.  506;  16  L.  ed.  169. 


LAW  OF  THE  UNITED  STATES  25 

action.  "No  State,  judge  or  court,"  declared  Taney 
who  rendered  the  opinion  of  the  court,  "  after  they  are 
judicially  informed  that  the  party  is  imprisoned  under 
the  authority  of  the. United  States,  has  any  right  to 
interfere  with  him,  or  require  him  to  be  brought  before 
them.  And  if  the  authority  of  the  State,  in  form  of  judi- 
cial process  or  otherwise,  shoujd  attempt  to  control  the 
marshal  or  other  authorized  officer  or  agent  of  the  United 
States,  in  the  custody  of  his  prisoner,  it  would  be  his  duty 
to  resist,  and  to  call  to  his  aid  any  force  that  might  be 
necessary  to  maintain  the  authority  of  the  law  against 
illegal  interference." 

Secession  illegal 

From  the  foregoing  brief  review  it  is  thus  seen  that 
prior  to  the  Civil  War  the  supremacy  of  the  Federal  law 
had  been  sustained  under  a  wide  variety  of  circumstances 
and  that  the  resulting  subordinate  status  of  the  States 
had  been  made  fully  evident.  That  status  the  people  of 
certain  of  the  Southern  States,  in  1861,  decided  no  longer 
to  support,  and  in  defense  of  their  views,  declared  their 
respective  commonwealths  independent  of  the  Union, 
aiid  in  support  of  this  independence  resorted  to  the 
arbitrament  of  war.  That  this  secession  was  an  illegal 
act,  and  that,  therefore,  the  seceding  States,  from  the 
constitutional  view  point,  never  were  out  of  the  Union, 
has  repeatedly  been  declared  by  the  Supreme  Court.  In 
Texas  v.  White  20  the  Union  was  declared  to  be  "an  in- 
destructible Union  composed  of  indestructible  States." 
The  opinion  continues:  "When,  therefore,  Texas  became 
one  of  the  United  States,  she  entered  into  an  indissoluble 
relation.  .  .  .  The  act  which  consummated  her  admis- 
sion into  the  Union  was  something  more  than  a  compact; 


M7  Wall.  700;  19  L.  ed.  227. 


26  PRINCIPLES  OF  THE  CONSTITUTIONAL 

it  was  the  incorporation  of  a  new  member  into  the  polit- 
ical body.  The  union  between  Texas  and  the  other  States 
was  as  complete,  as  perpetual  and  as  indissoluble  as  the 
union  between  the  original  States.  There  was  no  place 
for  reconsideration,  or  revocation,  except  through  revolu- 
tion, or  through  the  consent  of  the  States.  Considered, 
therefore,  as  transactions  under  the  Constitution,  the 
ordinance  of  secession,  adopted  by  the  convention  and 
ratified  by  a  majority  of  the  citizens  of  Texas,  and  all  the 
acts  of  her  legislature  intended  to  give  effect  to  that 
ordinance,  were  absolutely  null.  They  were  utterly  with- 
out operation  in  law.  The  obligations  of  the  State,  as  a 
member  of  the  Union,  and  of  every  citizen  of  the  State, 
as  a  citizen  of  the  United  States,  remained  perfect  and  un- 
impaired. It  certainly  follows  that  the  State  did  not  cease 
to  be  a  State,  nor  her  citizens  to  be  citizens  of  the  Union." 
In  Knox  v.  Lee,21  the  court  said,  speaking  through  the 
mouth  of  Justice  Bradley:  "The  doctrine  so  long  con- 
tended for,  that  the  Federal  Union  was  a  mere  compact 
of  States,  and  that  the  States,  if  they  chose,  might  annul 
and  disregard  the  acts  of  the  national  legislature,  or 
might  secede  from  the  Union  at  their  pleasure,  and  that 
the  General  Government  had  no  power  to  coerce  them  into 
submission  to  the  Constitution,  should  be  regarded  as 
definitely  and  forever  overthrown.  This  has  been  finally 
effected  by  the  national  power,  as  it  had  often  been  before 
by  overwhelming  argument.  .  .  .  The  United  States  is 
not  only  a  government,  but  it  is  a  National  Government, 
and  the  only  government  in  this  country  that  has  the 
character  of  nationality." 

Plenitude  of  Federal  powers 

The   possession   by  the   Federal   Government   of  full 


21 12  Wall.  457;  20  L.  ed.  287. 


LAW  OF  THE  UNITED  STATES  27 

power  to  protect  any  right  and  to  enforce  any  law  of  its 
own,  at  any  time,  and  at  any  place  within  its  territorial 
limits,  against  the  resistance  of  individuals,  or  State  of- 
ficials, acting  with  or  without  the  authority  of  State  law, 
has  been  uniformly  asserted  by  the  Supreme  Court  when- 
ever such  an  assertion  has  been  necessary.  The  attitude 
of  the  Federal  Supreme  Court  in  the  case  of  Ableman  v. 
Booth,  decided  in  1859,  has  already  been  mentioned. 
Again,  after  the  Civil  War,  the  court  said,  when  confronted 
by  the  proposition  that  because  the  United  States  was 
without  any  general  criminal  jurisdiction  it  might  not 
punish  criminally  individuals  who  had  violated  certain 
of  its  laws  relating  to  congressional  elections:  "It  is  argued 
that  the  preservation  of  peace  and  good  order  in  society 
is  not  within  the  powers  confided  to  the  government  of 
the  United  States,  but  belongs  exclusively  to  the  States. 
Here  again  we  are  met  with  the  theory  that  the  govern- 
ment of  the  United  States  does  not  rest  upon  the  soil 
and  territory  of  the  country.  We  think  that  this  theory 
is  founded  on  an  entire  misconception  of  the  nature  and 
power  of  that  government.  We  hold  it  to  be  an  incon- 
trovertible principle  that  the  government  of  the  United 
States  may,  by  means  of  physical  force,  exercised  through 
its  official  agents,  execute  on  every  foot  of  American  soil 
the  powers  and  functions  that  belong  to  it.  This  neces- 
sarily involves  the  power  to  command  obedience  to  its 
laws,  and  hence  the  power  to  keep  the  peace  to  that 
extent." 

Finally  in  the  Debs  case,22  a  case  growing  out  of  the 
great  railroad  strike  in  1894,  the  plenitude  of  the  Federal 
power  was  emphatically  stated.  Speaking  of  the  right  of 
the  National  Government  to  protect,  by  armed  force  if 
necessary,  interstate  commerce  and  the  transportation  of 


22  In  re  Debs,  158  U.  S.  564;  15  Sup.  Ct.  Rep.  900;  39  L.  ed.  1092. 


28  PRINCIPLES  OF  CONSTITUTIONAL  LAW 

the  mails,  the  court  said:  "If  the  inhabitants  of  a  single 
State  or  a  great  body  of  them  should  combine  to  obstruct 
interstate  commerce  or  the  transportation  of  the  mails, 
prosecution  of  such  offenses  had  in  such  a  community 
would  be  doomed  in  advance  to  failure.  And  if  the  cer- 
tainty of  such  failure  was  known  and  the  National  Gov- 
ernment had  no  other  way  to  enforce  the  freedom  of 
interstate  commerce  or  the  transportation  of  the  mails 
than  by  prosecution  and  punishment  for  interference 
therewith,  the  whole  interests  of  the  Nation  in  these 
respects  would  be  at  the  absolute  mercy  of  a  portion  of 
the  inhabitants  of  a  single  State.  But  there  is  no  such 
incompetency  in  the  National  Government.  The  entire 
strength  of  the  Nation  may  be  used  to  enforce  in  any 
part  of  the  land  the  full  and  free  exercise  of  all  national 
powers  and  the  security  of  all  rights  entrusted  by  the 
Constitution  to  its  care.  The  strong  arm  of  the  National 
Government  may  be  put  forth  to  brush  away  all  obstruc- 
tions to  the  freedom  of  interstate  commerce  or  the  trans- 
portation of  the  mails.  If  the  emergency  arises,  the  army 
of  the  Nation  and  all  its  militia  are  at  the  service  of  the 
Nation  to  compel  obedience  to  its  laws." 


CHAPTER  III 

PRINCIPLES  OF  CONSTITUTIONAL  CONSTRUCTION — CIRCUM- 
STANCES UNDER  WHICH  THE  COURTS  WILL  HOLD  AN 
ACT  OF  CONGRESS  VOID 

Rules  governing  constitutionality  of  laws 

Because  an  act  of  Congress  is  the  declaration  of  a  co- 
ordinate branch  of  the  National  Government,  the  courts 
have  established  for  themselves  certain  more  or  less  def- 
inite rules  governing  the  conditions  under  which  they  will 
undertake  to  pass  upon  the  constitutionality  of  Federal 
statutes.  These  rules  are  self-established,  under  a  sense 
of  propriety  and  expediency,  and  are  not  created  by  any 
constitutional  necessity. 

Courts  of  first  instance  will  not  hold  an  act  unconstitu- 
tional except  in  clear  cases/  but  will  leave  this  to  the  final 
judgment  of  the  higher  courts.  Inferior  courts  hold  them- 
selves bound  by  the  prior  decisions  of  superior  courts  as 
to  the  validity  of  an  act,  even  though  new  reasons,  pro  or 
contra,  are  raised.  The  presumption  is  that  all  possible 
arguments  were  in  fact  considered  by  the  superior  courts. 

The  Supreme  Court  has  held  that,  ordinarily,  it  will  not 
hold  a  law  void  except  by  a  majority  of  the  full  bench.1 

The  courts  will  not  pass  upon  the  constitutionality  of 
a  law  except  in  suits  duly  brought  before  them  at  the  in- 
stance of  parties  whose  material  interests  are  involved.2 

1  New  York  v.  Miln,  8  Pet.  120;  8  L.  ed.  888. 

2  For  a  recent  review  of  the  doctrine  see  David  Muskrat  v.  U.  S., 
219  U.  S.  348;  31  Sup.  Ct.  Rep.  250;  55  L.  ed.  246.     The  force  of 
advisory  opinions  is  discussed  in  Thayer's  Cases  on  Constitutional 
Law,  175. 

29 


30  PRINCIPLES  OF  THE  CONSTITUTIONAL 

The  Supreme  Court  will  not  pass  adversely  upon  the 
validity  of  an  act  of  Congress  unless  it  is  absolutely  neces- 
sary for  it  to  do  so  in  order  to  decide  the  question  at 
issue.3 

When  it  is  possible  to  do  so  without  doing  too  great 
violence  to  the  words  actually  used,  the  language  of  a 
statute  will  be  so  restricted  as  to  render  the  measure  con- 
stitutional. For  the  court  will  always  presume  that  the 
legislature  did  not  intend  to  exceed  its  constitutional 
powers.4  Where,  however,  the  scope  of  the  law  is  plainly 
expressed,  and  as  such  is  unconstitutional,  the  court  will 
not  resort  to  a  strained  or  arbitrary  interpretation  to 
bring  the  law  within  constitutional  limits.5 

The  court  will  not  permit  the  unconstitutionally  of  a 
particular  provision  of  a  law  to  invalidate  the  entire  law 
if  it  is  possible  to  separate  the  invalid  provision  from  the 
other  provisions  without  destroying  or  impairing  their 
efficiency  to  attain  the  results  evidently  intended  by  the 
legislature  that  enacted  them.  Even  when  thus  separable, 
however,  the  court  will  not  hold  the  remainder  of  the  law 
valid  if  there  is  a  doubt  whether,  the  realization  of  the 
whole  of  its  will  being  rendered  impossible,  the  legislature 
would  have  desired  the  execution  of  a  part  only.6 

With  the  motives  of  the  legislators  the  courts  will  not 


3  But  see  Marbury  v.  Madison,  1  Cr.  137;  2  L.  ed.  60,  and  Dred 
Scott  v.  Sandford,  19  How.  398;  15  L.  ed.  691. 

4  Knights  Templar  Indemnity  Co.  v.  Jarman,  187  U.  S.  197;  23 
Sup.  Ct.  Rep.  108;  47  L.  ed.  139;  U.  S.  v.  D.  &  H.  Ry.  Co.,  213  U.  S. 
366;  29  Sup.  Ct.  Rep.  527;  53  L.  ed.  836. 

^  Howard  v.  111.  Cen.  R.  R.  Co.,  207  U.  S.  463;  28  Sup.  Ct.  Rep. 
141;  52  L.  ed.  297;  James  v.  Bowman,  190  U.  S.  127;  23  Sup.  Ct. 
Rep.  678;  47  L.  ed.  979. 

6  But  see  U.  S.  v.  Reese,  92  U.  S.  214;  23  L.  ed.  563.  See  also 
Columbia  Law  Review,  Feb.,  1911,  article  "Partial  Unconstitution- 
ality with  Special  Reference  to  the  Corporation  Tax,"  by  Alfred 
Hayes,  Jr. 


LAW  OF  THE  UNITED  STATES  31 

concern  themselves.  "The  judiciary  can  only  inquire 
whether  the  means  devised  in  the  execution  of  a  power 
granted  are  forbidden  by  the  Constitution.  It  cannot  go 
beyond  that  inquiry  without  intrenching  upon  the  domain 
of  another  department  of  government.  That  it  may  not 
do  with  safety  to  our  institutions."  7 

The  power  of  Congress  to  legislate  being  conceded,  the 
wisdom  or  expediency  of  the  manner  in  which  the  power 
is  exercised  is  held  to  be  beyond  judicial  criticism  or  con- 
trol.8 

Finally,  the  courts  are  guided  in  their  judgments  by  the 
rule  that  every  reasonable  presumption  shall  be  in  favor 
of  the  validity  of  a  questioned  legislative  act.  As  the 
Supreme  Court  have  said  in  an  important  case:  "The  dec- 
laration [that  an  act  of  Congress  is  void]  should  never 
be  made  except  in  a  clear  case.  Every  possible  presump- 
tion is  in  favor  of  the  validity  of  a  statute  and  this  con- 
tinues until  the  contrary  is  shown  beyond  a  rational 
doubt."  9 

The  rule  of  construction  that  has  last  been  stated  has 
especial  application  to  acts  of  Congress.  When  the  con- 

7  Interstate  Commerce  Commission  v.  Brimson,  154  U.  S.  447;  14 
Sup.  Ct.  Rep.  1125;  38  L.  ed.  1047;  Northern  Securities  Co.  v.  U.  S., 
193  U.  S.  197;  24  Sup.  Ct.  Rep.  436;  48  L.  ed.  679;  McCray  v.  U.  S., 
195  U.  S.  27;  24  Sup.  Ct.  Rep.  769;  49  L.  ed.  78;  Ex  parte  McCardle, 
7  Wall.  506;  19  L.  ed.  264. 

8  Treat  v.  White,  181  U.  S.  264;  21  Sup.  Ct.  Rep.  611;  45  L.  ed. 
853;  Fatten  v.  Brady,  184  U.  S.  608;  22  Sup.  Ct.  Rep.  493;  46  L. 
ed.  713. 

9  Knox  v.  Lee,  12  Wall.  457;  20  L.  ed.  287.    This  doctrine  has  been 
repeatedly  declared.    Whether  it  has  always  been  followed  there  is 
room  for  doubt.    For  an  especially  acute  discussion  of  this  principle 
of  construction  see  Thayer,  Origin  and  Scope  of  the  American  Doc- 
trine of  Constitutional   Law  (published  originally  in  Harvard  Law 
Review,  republished  in  the  volume  entitled    Legal   Essays,  1908). 
See  also  Political  Science  Quarterly,  XXIV,  193,  article  "Growth  of 
Judicial  Power,"  by  W.  F.  Dodd. 


32  PRINCIPLES  OF  THE  CONSTITUTIONAL 

stitutionality  of  a  State  law  is  involved,  the  principle  is 
not  always  applicable.  If  the  question  at  issue  is  as  to 
whether  a  given  power  resides  in  the  Federal  Government 
or  in  the  States,  the  fact  that  a  State  legislature  in  its  enact- 
ment has  asserted  that  it  is  vested  in  the  States,  raises  no 
presumption  in  favor  of  the  validity  of  this  claim.  The 
Supreme  Court  in  passing  finally  upon  this  point  is  not 
called  upon  to  review  the  act  of  a  co-ordinate  department, 
but  has  to  decide  between  the  conflicting  claims  of  two 
governments,  and,  quite  properly,  feels  itself  at  liberty  to 
decide  the  point  as  an  original  proposition;  namely,  upon 
the  basis  of  its  own  judgment  as  to  what  is  the  most  rea- 
sonable construction  of  the  constitutional  provisions  in- 
volved. 

If,  however,  the  State  law,  whose  constitutionality  is 
questioned,  is  with  reference  to  a  matter  admittedly 
within  the  province  of  the  States,  and  the  question  is 
simply  whether  the  power  has  been  properly  exercised, 
there  is  held  to  be  a  strong  presumption  that  the  act  is 
constitutional.  Thus,  for  example,  if  it  be  a  question 
whether  the  States  have  a  power  to  regulate  interstate 
commerce,  or  to  tax  a  national  bank,  or  to  naturalize 
aliens,  or  enact  bankruptcy  laws,  there  is  no  presump- 
tion in  favor  of  the  constitutionality  of  acts  in  which 
the  State  power  is  asserted.  If,  however,  it  is  a  ques- 
tion, for  example,  whether  the  police  powers,  admittedly 
belonging  to  the  States,  have  been  constitutionally  ex- 
ercised, the  presumption  is  that  they  have  been  so  ex- 
ercised. 

When  the  Federal  Supreme  Court  is  called  upon  to 
consider  the  constitutionality  of  a  State  law  as  deter- 
mined by  its  conformity  with  the  Constitution  of  the 
State,  the  State  Constitution  is  construed  as  having  for 
its  general  purpose  the  placing  of  limitations  upon  the 
powers  of  the  legislature;  whereas,  of  course,  the  Federal 


LAW  OF  THE  UNITED  STATES  33 

Constitution  is  viewed  as  a  grant  of  legislative  power. 
In  other  words,  whereas  the  Federal  legislature  is  con- 
strued to  have  only  those  powers  granted  to  it  expressly 
or  impliedly  by  the  Federal  Constitution,  the  State  legis- 
latures are  considered  to  possess  all  powers  not  expressly 
or  impliedly  withdrawn  from  them  by  the  Federal  or 
respective  State  Constitutions. 

In  those  cases  in  which  the  courts  of  the  States  are 
called  upon  to  consider  the  constitutionality  of  the  acts 
of  their  own  lawmaking  bodies,  as  tested  by  the  Federal 
or  their  own  State  Constitutions,  they  of  course  have  to 
deal  with  the  acts  of  a  department  of  government  co- 
ordinate in  power  with  themselves;  and,  therefore,  hold 
themselves,  or  at  least  should  hold  themselves,  bound  in 
all  cases  to  give  to  the  laws  that  same  benefit  of  rational 
doubt  which  the  Federal  Supreme  Court  gives  to  acts  of 
Congress. 

The  presumption  of  constitutionality  which  attaches  to 
an  act  of  Congress  is  increased  when  the  legislative  inter- 
pretation has  been  frequently  applied  during  a  consider- 
able number  of  years,  or  when  it  dates  from  a  period 
practically  contemporaneous  with  the  adoption  of  the 
Constitution,  or  when,  based  upon  a  confidence  in  its 
correctness,  many  and  important  public  and  private  rights 
have  become  fixed.10 

The  Supreme  Court  has,  however,  never  held  itself 
absolutely  bound  by  a  legislative  or  executive  construc- 
tion (political  questions  excepted)  however  long  acquiesced 
in,  or  however  nearly  contemporaneous  in  its  first  state- 
ment with  the  adoption  of  the  Constitution.11 


10  Lithographic  Co.  v.  Sarony,  111  U.  S.  53;  4  Sup.  Ct.  Rep.  279; 
28  L.  ed.  349. 

11  Swift  v.  United   States,  105  U.  S.  691;  26  L.  ed.  1108.     The 
doctrine  is  carefully  reviewed  in  Fairbanks  v.  United  States,  181  U. 
S.  283;  21  Sup.  Ct.  Rep.  648;  45  L,  ed.  862. 

3 


34  PRINCIPLES  OF  THE  CONSTITUTIONAL 

Extrinsic  evidence 

Generally  speaking,  in  the  construction  of  the  Consti- 
tution the  well-known  distinctions  between  latent  and 
patent  ambiguities,  and  between  the  use  of  extrinsic  and 
intrinsic  evidence  apply.  When  the  language  of  the  in- 
strument is  itself  indefinite  or  is  such  that  more  than  one 
meaning  may,  by  grammatical  construction,  be  drawn 
from  its  terms,  the  courts  base  their  determinations  upon 
the  language  and  provisions  found  within  the  four  corners 
of  the  instrument,  and  without  resort  to  extrinsic  evi- 
dence. The  governing  point  is  as  to  what  is  actually 
written.  If  a  given  power  may  rationally,  logically,  and 
grammatically  be  construed  as  granted  by  a  given  provi- 
sion, then  it  is  of  no  countervailing  force  to  adduce  the 
fact  that  such  was  not  the  intention  of  those  by  whom 
the  instrument  of  government  was  established. 

Technical  terms 

When,  however,  there  is  no  ambiguity  of  grammatical 
construction,  but  the  words  themselves  require  definition, 
recourse  is  properly  had  to  extrinsic  evidence.  Here  it 
is  necessary  to  learn  from  extrinsic  sources  the  meanings 
usually  attached  to  these  words  at  the  time  the  Consti- 
tution was  framed  and,  presumably,  by  those  who  framed 
and  adopted  the  Constitution.  Examples  of  such  tech- 
nical terms  are  " letters  of  marque  and  reprisal,"  "ex 
post  facto,"  "bill  of  attainder,"  "bankruptcy,"  "admi- 
ralty," "equity,"  "direct  tax,"  "duties,"  "imposts,"  "ex- 
cises," "piracy,"  "habeas  corpus,"  "citizen,"  "alliance," 
"confederation,"  "republican  form  of  government,"  "in- 
famous crime,"-  "commerce,"  etc.  The  technical  term 
"treason"  is  defined  in  the  Constitution  itself. 

As  has  been  repeatedly  declared  by  the  courts  the  best 
rule  for  interpreting  the  technical  terms  employed  in  the 
Constitution  is  to  give  to  them  the  meaning  which  they 


LAW  OF  THE  UNITED  STATES  35 

had  at  the  time  that  instrument  was  framed  and  adopted. 
When  the  terms  are  technical  law  terms  they  are  to  be 
given  the  meaning  attached  to  them  in  the  English  com- 
mon law.12  In  a  few  instances,  however,  the  Supreme 
Court  has  refused  to  give  to  technical  terms  the  meanings 
attached  to  them  in  1789  by  the  common  law.  This  has 
been  so  especially  with  reference  to  the  words  "admiralty" 
and  " bankruptcy"  both  of  which  terms  have  been  given 
a  broader  meaning  than  that  furnished  by  the  English 
law. 

The  interpretative  value  of  debates  in  constitutional  conven- 
tions 

When  it  is  necessary  and  proper  to  resort  to  extrinsic 
evidence  in  interpreting  the  Constitution,  an  important 
source  of  such  evidence  is  to  be  found  in  the  history  of  the 
events  which  led  up  to  its  adoption.  Of  special  impor- 
tance are  the  recorded  proceedings  of  the  convention  which 
drafted,  of  the  State  conventions  which  ratified,  and  the 
public  utterances  of  the  men  who  played  an  important 
part  in  the  establishment  of,  the  Constitution.  Resort 
is,  however,  to  be  had  to  these  sources  only  where  latent 
ambiguities  are  to  be  resolved.  Cooley  has  stated,  in  a 
manner  not  to  be  improved  upon,  the  weight  properly 
to  be  ascribed  to  these  records.  He  says:  "When  the 
inquiry  is  directed  to  ascertaining  the  mischief  designed 
to  be  remedied,  or  the  purpose  sought  to  be  accomplished 
by  a  particular  provision,  it  may  be  proper  to  examine 
the  proceedings  of  the  convention  which  framed  the  in- 
-stmment.  When  the  proceedings  clearly  point  out  the 
purpose  of  the  provision,  the  aid  will  be  valuable  and 
satisfactory;  but  when  the  question  is  one  of  abstract 

12  In  South  Carolina  v.  U.  S.,  199,  U.  S.  437;  26  Sup.  Ct.  Rep.  110; 
50  L.  ed.  261,  many  illustrations  of  the  application  of  this  rule  are 
given. 


36  PRINCIPLES  OF  THE  CONSTITUTIONAL 

meaning,  it  will  be  difficult  to  derive  from  this  source 
much  reliable  assistance  in  interpretation.  Every  mem- 
ber of  such  a  convention  acts  upon  such  motives  and 
reasons  as  influence  him  personally,  and  the  motions  and 
debates  do  not  necessarily  indicate  the  purpose  of  a 
majority  of  a  convention  in  adopting  a  particular  clause. 
It  is  quite  possible  for  a  clause  to  appear  so  clear  an«d 
unambiguous  to  the  members  of  a  convention  as  to  re- 
quire neither  discussion  nor  illustration;  and  the  few  re- 
marks made  concerning  it  in  the  convention  might  have 
a  plain  tendency  to  lead  directly  away  from  the  meaning 
in  the  minds  of  the  majority.  It  is  equally  possible  for  a 
part  of  the  members  to  accept  a  clause  in  one  sense  and 
a  part  in  another.  And  even  if  we  were  certain  we  had 
attained  to  the  meaning  of  the  convention,  it  is  by  no 
means  to  be  allowed  a  controlling  force,  especially  if  that 
meaning  appears  not  to  be  the  one  which  the  words  would 
most  naturally  and  obviously  convey.  For  as  the  Consti- 
tution does  not  derive  its  force  from  the  convention  which 
framed,  but  from  the  people  who  ratified  it,  the  intent 
to  be  arrived  at  is  that  of  the  people,  and  it  is  not  to  be 
supposed  that  they  have  looked  for  any  dark  and  abstruse 
meaning  in  the  words  employed,  but  rather  that  they 
have  accepted  them  in  the  sense  most  obvious  to  the 
common  understanding,  and  ratified  the  instrument  in 
the  belief  that  that  was  the  sense  designed  to  be  conveyed. 
These  proceedings,  therefore,  are  less  conclusive  to  the 
proper  construction  of  the  instrument  than  are  legislative 
proceedings  to  the  proper  construction  of  a  statute;  since 
in  the  latter  case  it  is  the  intent  of  the  legislature  we  • 
seek,  while  in  the  former  we  are  endeavoring  to  arrive 
at  the  intent  of  the  people  through  the  discussions  and 
deliberations  of  their  representatives.  The  history  of  the 
calling  of  the  convention,  of  the  causes  which  led  to  it, 
and  the  discussions  and  issues  before  the  people  at  the 


LAW  OF  THE  UNITED  STATES  37 

time  of  the  election  of  the  delegates,  will  sometimes  be 
quite  as  instructive  and  satisfactory  as  anything  to  be 
gathered  from  the  convention."  13 

The  Federalist 

What  has  been  said  regarding  the  interpretative  value 
of  the  debates  in  the  conventions  which  framed  and  rati- 
fied the  Constitution,  and  the  value  of  contemporary 
interpretation  thereof  by  Congress  and  the  Executive, 
applies  almost  equally  to  the  collection  of  essays  published 
under  the  title  of  The  Federalist.  This  is  true  of  these 
essays  not  only  because  of  their  respective  authors — 
Hamilton,  Madison  and  Jay — but  because  of  the  purpose 
for  which  they  were  prepared  and  published,  which  was 
to  persuade  the  several  State  conventions  to  ratify  the 
Constitution.  Having  this  construction  of  the  Constitu- 
tion before  them,  there  are  considerable,  though  not  con- 
clusive, grounds  for  holding  that,  the  meaning  thus  pub- 
lished and  not  repudiated,  was  the  construction  intended 
by  those  who  put  the  Constitution  into  force.  The  case 
of  Chisholm  v.  Georgia  is,  however,  a  conspicuous  instance 
in  which  a  view  advanced  in  The  Federalist  (that  a  State 
would  not  be  suable  in  the  Federal  courts  at  the  instance 
of  a  citizen  of  another  State)  was  repudiated  by  the 
Supreme  Court. 

History  of  the  times 

Occasional  resort  has  been  had  to  the  history  of  the 
times  at  which  the  Constitution  or  an  amendment  thereof 
was  adopted  in  order  to  determine  the  purpose  and  thus 
the  meaning  of  a  questioned  provision.  Conspicuous  in- 
stances of  this  are  Prigg  v.  Pennsylvania,14  and  the 


13  Constitution  Limitations,  7th  ed.,  101. 

14  16  Pet.  539;- 10  L.  ed.  1060. 


38  PRINCIPLES  OF  THE  CONSTITUTIONAL 

Slaughter  House  Cases.15  It  is  to  be  emphasized,  how- 
ever, that  extrinsic  evidence  of  this  kind  may  never  prop- 
erly be  used  to  support  an  interpretation  which  the  writ- 
ten word  does  not  upon  its  face  reasonably  permit.  In 
other  words,  this  evidence  may  properly  be  used  to  de- 
cide between  two  possible  constructions  of  the  written 
word,  but  not  to  add  to  or  subtract  from  its  express  pro- 
visions. 

Interpretative  value  of  legislative  debates 

As  in  the  case  of  the  examination  of  the  Constitution 
itself,  the  courts  in  considering  the  constitutionality  of  a 
statute  hold  themselves  bound  by  the  words  of  the  statute, 
that  is,  they  determine  the  intent  of  the  legislature  by 
the  words  it  has  employed.  And,  therefore,  they  will  not 
resort  to  legislative  debates  except  where  necessary  to 
resolve  a  latent  ambiguity.16  In  Standard  Oil  Co.  v. 
United  States,17  however,  the  court  point  out  that  al- 
though debates  may  not  be  used  as  a  means  for  inter- 
preting a  statute,  that  rule,  in  the  nature  of  things,  is  not 
violated  by  resorting  to  debates  as  a  means  of  ascertaining 
the  environment  at  the  time  of  the  enactment  of  a  par- 

15 16  Wall.  36;  21  L.  ed.  394.  In  this  case  the  court  though  appeal- 
ing to  a  history  of  the  times  did  in  fact  give  to  a  clause  of  the  Four- 
teenth Amendment  a  meaning  not  only  other  than  that  which  its 
language  upon  its  face  would  bear,  but  different  from  that  which 
those  who  framed  it  probably  intended  that  it  should  have. 

16  Maxwell  v.  Dow,  176  U.  S.  581;  20  Sup.  Ct.  Rep.  448;  44  L.  ed. 
597.     It  is  to  be  remarked,  however,  that  the  courts  though  con- 
stantly reiterating  the  doctrine  as  to  the  impropriety  of  a  resort  to 
legislative  debates  for  purposes  of  construction  do  indeed  often  refer 
to  them  in  support  of  the  positions  which  they  assume.     See,  for 
example,  both  the  majority  and  minority  opinions  in  U.  S.v.  Trans- 
Missouri  Freight  Assn.,  166  U.  S.  290;  17  Sup.  Ct.  Rep.  540;  41  L. 
ed.  1007;  and  U.  S.  v.  D.  &  H.  R.  R.  Co.,  213  U.  S.  366;  29  Sup.  Ct. 
Rep.  527;  53  L.  ed.  836. 

17  221  U.  S.  1 ;  31  Sup.  Ct.  Rep.  502;  55  L.  ed.  619. 


LAW  OF  THE  UNITED  STATES  39 

ticular  law,  that  is,  the  history  of  the  period  when  it  was 
adopted. 

Resort  to  the  Preamble  for  purpose  of  construction 

The  value  of  the  Preamble  to  the  Constitution  for  pur- 
poses of  construction  is  similar  to  that  given  to  the  pre- 
amble of  an  ordinary  statute.  It  may  not  be  relied  upon 
for  giving  to  the  body  of  the  instrument  a  meaning  other 
than  that  which  its  language  plainly  imports,  but  may  be 
resorted  to  in  cases  of  ambiguity,  where  the  intention  of 
the  framers  does  not  clearly  and  definitely  appear.  As 
Story  says:  "The  preamble  of  a  statute  is  a  key  to  open 
the  minds  of  the  makers  as  to  the  mischiefs  which  are 
to  be  remedied,  and  the  objects  which  are  to  be  accom- 
plished by  the  provisions  of  the  statute."  18 

The  Constitution  is  to  be  construed  as  a  whole 

Though  the  terms  of  the  Constitution  may  not  be 
varied,  or  its  grants  of  authority  limited  by  abstract 
doctrines  of  private  rights  and  of  political  justice  and 
expediency,  the  words  of  each  clause  are  to  be  interpreted 
in  the  light  of  the  other  provisions  of  the  Constitution. 
The  Constitution  is  a  logical  whole,  each  provision  of 
which  is  an  integral  part  thereof,  and  it  is,  therefore, 
logically  proper,  and  indeed  imperative,  to  construe  one 
part  in  the  light  of  the  provisions  of  all  the  other  parts. 

This  principle  has  been  of  dominant  force  in  the  con- 
struction of  the  Constitution. 

The  principle  that  the  Constitution  is  to  be  interpreted 
in  the  light  of  the  general  purpose  for  the  attainment  of 
which  it  was  adopted,  coupled  with  the  fact  that  many 
of  its  terms  are  general  in  character,  has  made  possible 
and  legitimate  two  schools  of  constructionists — the  Loose 

18  Commentaries,  §  459.  For  a  discussion  of  the  weight  attached  to 
certain  clauses  of  the  Preamble,  see  Willoughby  Constitutional  Law 
of  the  United  States  §§  19-22. 


40  PRINCIPLES  OF  THE  CONSTITUTIONAL 

or  Nationalistic  school,  and  the  Strict  or  States'  Rights 
school — each  dependent  upon  a  belief  held  as  to  the  gen- 
eral end  which  the  framers  of  the  Constitution  had  in 
mind  when  that  instrument  was  drafted.  The  Strict  or 
States'  Rights  constructionist  has  not  always  been  one 
who  would  deny  sovereignty  or  efficiency  to  the  National 
Government.  Thus,  Taney,  a  leader  of  the  strict  con- 
structionists,  never  for  a  moment  doubted  the  sovereignty 
of  the  General  Government,  or,  as  he  showed  in  his  deci- 
sion in  Ableman  v.  Booth,  the  supremacy  of  its  laws  and 
of  its  agents  over  the  laws  and  agents  of  the  States.  He 
did  believe,  however,  that  the  sovereign  national  laws 
should  be  kept  within  as  limited  a  space  as  possible.  This 
he  showed  from  the  first  year  of  his  chief-justiceship. 

From  the  general  nature  and  intent  of  the  Constitution 
have  been  deduced,  not  to  mention  other  doctrines,  the 
denial  of  the  right  of  secession,  the  power  of  the  courts 
to  hold  void  State  or  Federal  laws  contrary  to  the  Consti- 
tution, the  jurisdiction  of  the  Federal  courts  to  entertain 
appeals  from  the  highest  State  courts  in  cases  in  which  a 
Federal  right,  privilege  or  immunity  has  been  set  up  and 
denied,  the  immunity  of  Federal  governmental  agencies 
from  interference  on  the  part  of  the  States  by  taxation  or 
otherwise,  the  immunity  of  State  agencies  from  Federal 
taxation,  the  exclusive  Federal  jurisdiction  in  matters  of 
naturalization,  and  the  liberal  construction  of  " implied" 
powers  generally. 

So-called   "  natural  "   or   "  unwritten   constitutional  "   laws 

have  no  constructive  force 

The  so-called  "natural"  or  unwritten  laws  defining  the 
natural,  inalienable,  inherent  rights  of  the  citizen,  which, 
it  is  sometimes  claimed,  spring  from  the  very  nature  of 
free  government,  have  no  force  either  to  restrict  or  extend 
the  written  provisions  of  the  Constitution.  The  utmost 


LAW  OF  THE  UNITED  STATES  41 

that  can  be  said  for  them  is  that  where  the  language  of 
the  Constitution  admits  of  doubt,  it  is  to  be  presumed 
that  authority  is  not  given  for  the  violation  of  acknowl- 
edged principles  of  justice  and  liberty. 

In  not  a  few  instances,  especially  during  early  years, 
the  binding  force  of  natural  laws  is  declared,  but  a  care- 
ful examination  of  these  cases  shows  that,  practically 
without  exception,  the  doctrine  was  used  not  as  the  real 
ratio  decidendi,  but  to  support,  upon  grounds  of  justice 
and  expediency,  a  decision  founded  upon  the  written  con- 
stitutional law. 

The  "  spirit  "  of  the  Constitution 

Closely  allied  to  the  assertion  that  the  Constitution 
is  to  be  interpreted  in  the  light  of  " natural  law,"  is  the 
doctrine  that  the  fundamental  purpose  of  the  constitu- 
tional fathers  was  the  erection  of  a  free  republican  govern- 
ment, and  that,  therefore,  the  Constitution  should,  what- 
ever its  express  terms  may  provide,  never  be  so  construed 
as  to  violate  the  abstract  principles  deducible  from  this 
fundamental  fact.  Generally  speaking,  whereas  the  so- 
called  natural  laws  have  reference  to  the  private  rights  of 
the  citizen,  the  protection  of  his  person  and  property; 
these  principles  claimed  to  be  deducible  from  the  spirit  of 
the  Constitution  as  the  framework  of  a  free  government 
have  reference  to  the  public  and  political  rights  of  the 
individual. 

Stated  in  this  abstract,  philosophical  form,  the  doctrine 
that  the  " spirit"  of  the  Constitution  is  to  prevail  over  its 
language  has  no  more  legal  validity  than  has  the  doctrine 
of  natural  law. 

Applicability  of  constitutional  provisions  to  modern  condi- 
tions 

In  construing  the  Constitution  the  very  proper  and 
indeed  absolutely  necessary  principle  has  been  followed 


42  PRINCIPLES  OF  THE  CONSTITUTIONAL 

that  that  instrument  was  intended  to  endure  for  all  time, 
and  that  its  grants  of  power  are,  therefore,  to  be  inter- 
preted as  applicable  to  new  conditions  as  they  arise.  By 
this  is  not  meant,  however,  that  these  new  conditions 
shall  in  any  case  justify  the  exercise  of  a  power  not  granted, 
or  create  a  limitation  not  imposed  by  the  Constitution, 
but  that  the  powers  which  are  granted  shall,  if  possible, 
be  made  applicable  to  these  new  conditions. 

Thus  the  grant  to  the  Federal  Government  of  the  con- 
trol over  interstate  and  foreign  commerce  is  held  to  be 
one  the  extent  of  which,  though  not  its  importance,  is 
not  varied  by  the  fact  that  the  instrumentalities  by  which 
it  is  carried  on  are  widely  different  from  those  employed  in 
1789.  On  the  other  hand,  if  the  writing  of  insurance  pol- 
icies, and  the  dealing  in  banking  instruments  of  exchange 
were  not,  in  1789,  considered  interstate  commercial  trans- 
actions, and  by  reason  of  their  very  nature  could  not 
properly  have  been,  no  augmentation  in  their  amount 
and  no  increase  in  the  practical  need  for  their  Federal 
regulation  will  justify  a  construction  that  will  attach  an 
interstate  commercial  character  to  them,  and  thus  bring 
them  within  the  power  of  the  Federal  Government  to 
control. 

The  principle,  as  it  has  been  stated,  does  not  prevent 
a  construction  by  which  the  powers  and  limitations  enu- 
merated in  the  Constitution  are  made  applicable  to  new 
conditions  which  were  not  and  could  not  have  been  fore- 
seen by  those  who  adopted  the  Constitution.  In  the 
Dartmouth  College  case,  Marshall  says:  "It  is  not  enough 
to  say  that  this  particular  case  was  not  in  the  mind  of 
the  convention  when  the  article  was  framed,  nor  of  the 
American  people  when  it  was  adopted.  It  is  necessary  to 
go  further  and  to  say  that  had  this  particular  case  been 
suggested  the  language  would  have  been  so  varied  as  to 
exclude  it,  or  it  would  have  been  made  a  special  excep- 


LAW  OF  THE  UNITED  STATES  43 

tion."  19  Again  in  Re  Debs  the  court  say:  " Consti- 
tutional provisions  do  not  change,  but  their  operation 
extends  to  new  matters  as  the  modes  of  life  and  habits 
of  the  people  vary  with  each  succeeding  generation.  The 
law  of  the  common  carrier  is  the  same  to-day  as  when 
transportation  by  land  was  by  coach  and  wagon  and  on 
water  by  canal-boat  and  sailing  vessel,  yet  in  its  actual 
operation  it  touches  and  regulates  transportation  by  modes 
then  unknown.  Just  so  is  it  with  the  grant  to  the  Na- 
tional Government  of  power  over  interstate  commerce. 
The  Constitution  has  not  changed.  The  power  is  the 
same.  But  it  operates  to-day  upon  modes  of  interstate 
commerce  then  unknown  to  the'  fathers,  and  it  will  oper- 
ate with  equal  force  upon  any  new  modes  of  such  com- 
merce which  the  future  may  develop."  ^ 

A  doctrine  of  construction  radically  different  from  that 
which  has  just  been  stated,  and  which  has  never  been 
accepted  by  the  Supreme  Court,  is  that  which  has  been 
ascribed  to  James  Wilson  of  Pennsylvania,  and  in  recent 
years  urged  by  President  Roosevelt. 

This  doctrine  is,  that  when  a  subject  has  been  neither 
expressly  excluded  from  the  regulating  power  of  the 
Federal  Government,  nor  expressly  placed  within  the 
exclusive  control  of  the  States,  it  may  be  regulated  by 
Congress  if  it  be,  or  become,  a  matter  the  regulation  of 
which  is  of  general  importance  to  the  whole  nation,  and 
at  the  same  time  a  matter  over  which  the  States  are,  in 
practical  fact,  unable  to  exercise  the  necessary  controlling 
power.  According,  then,  to  this  doctrine,  the  Ninth  and 
Tenth  Amendments  which  declare  that:  "The  enumeration 
in  the  Constitution  of  certain  rights  shall  not  be  construed 

19  4  Wh.  518;  4  L.  ed.  629. 

20 158  U.  S.  564;  15  Sup.  Ct.  Rep.  900;  39  L.  ed.  1092.  See  also 
South  Carolina  v.  U.  S.,  199  U.  S.  437;  26  Sup.  Ct.  Rep.  110;  50  L.  ed. 
261. 


44  PRINCIPLES  OF  THE  CONSTITUTIONAL 

to  deny  or  disparage  others  retained  by  the  people,"  and 
that  "The  powers  not  delegated  to  the  United  States  by 
the  Constitution,  nor  prohibited  by  it  to  the  States,  are 
reserved  to  the  States  respectively,  or  to  the  people," 
are  not  to  be  interpreted  as  reserving  to  the  States,  or  to 
the  people,  those  powers  which,  though  not  granted  to 
the  Federal  Government,  are,  in  fact,  such  as  are  of  Fed- 
eral importance  and  which  the  States  are  unable  effect- 
ively to  exercise. 

The  foregoing  doctrine  is  one  quite  different  from,  the 
established  doctrine  of  implied  powers  as  developed  by 
Marshall,  a  doctrine  which  will  be  discussed  in  the  next 
chapter.  That  doctrine,  as  it  will  be  seen,  holds  that 
from  an  expressly  given  Federal  power  there  may  be 
implied  those  powers  which  are  necessary  and  proper  for 
effectively  exercising  it.  The  doctrine  thus  does  not 
justify,  under  any  circumstances,  the  assumption  of  a 
new  power  by  the  Federal  Government.  The  Wilson- 
Roosevelt  doctrine,  on  the  other  hand,  asserts  that  a  given 
subject  not  originally  within  the  sphere  of  Federal  con- 
trol, may,  by  mere  change  of  circumstances,  be  brought 
within  the  Federal  field.  Thus,  to  illustrate  concretely, 
it  might  be  argued  according  to  the  doctrine  of  implied 
powers  that  as  implied  in  authority  expressly  granted  to 
Congress  to  regulate  foreign  and  interstate  commerce 
Congress  might  compel  all  corporations  or  individuals, 
manufacturing  commodities  for  foreign  or  interstate  com- 
merce, to  obtain  a  Federal  license,  such  a  license  to  be 
granted  upon  such  terms  as  Congress  might  see  fit  to  dic- 
tate. According  to  the  Wilson-Roosevelt  doctrine,  how- 
ever, it  could  be  argued  that  the  control  of  manufacturing 
is  not  expressly  denied  the  Federal  Government  nor  ex- 
pressty  placed  within  the  exclusive  control  of  the  States, 
and  that,  under  existing  industrial  conditions  it  being  of 
Federal  importance  that  these  manufacturing  concerns, 


LAW  OF  THE  UNITED  STATES  45 

or  certain  of  them,  should  be  regulated,  and  the  States 
being  incompetent  to  furnish  the  necessary  regulation, 
therefore,  the  Federal  Government  has  the  power. 

Here,  it  will  be  seen,  there  is  no  resort  to  the  commerce 
clause,  or  to  any  other  express  grant  of  power.  The  doc- 
trine is  thus  one  which,  in  the  absence  of  express  pro- 
hibition in  the  Constitution,  will  support  the  assumption 
by  the  Federal  Government  of  any  power  whatsoever  if 
there  be  fair  ground  for  holding  that  regulation  is  needed 
and  that  the  States  are  not  able  to  furnish  it. 

In  the  very  recent  case  of  Kansas  v.  Colorado,  decided 
May  13,  1907,  substantially  this  doctrine  was  urged  upon 
but  repudiated  by  the  court.21 

Stare  decisis 

There  have  not  been  many  cases  in  which  the  Supreme 
Court  has  explicitly  and  avowedly  overruled  its  prior 
decisions,  but  there  have  been  frequent  instances  in  which 
the  doctrines  declared  in  prior  cases  have  been  in  part 
evaded  or  modified  without  explicit  repudiation. 

In  Washington  University  v.  Rouse,  Justice  Miller  said: 
"With  as  full  respect  for  the  authority  of  former  decisions 
as  belongs,  from  teaching  and  habit,  to  judges  trained  in 
the  common-law  system  of  jurisprudence,  we  think  there 
may  be  questions  touching  the  powers  of  legislative 
bodies  which  can  never  be  closed  by  the  decisions  of  a 
court."  22 

There  are  indeed  good  reasons  why  the  doctrine  of 
stare  decisis  should  not  be  so  rigidly  applied  to  consti- 
tutional as  to  other  cases.  In  cases  of  purely  private 
import,  the  chief  desideratum  is  that  the  law  remain 
certain,  and,  therefore,  where  a  rule  has  been  judicially 
declared  and  private  rights  created  thereunder,  the  courts 

21  206  U.  S.  46;  27  Sup.  Ct.  Rep.  655;  51  L.  ed.  956. 

22  8  Wall.  439;  19  L.  ed.  498. 


46  PRINCIPLES  OF  CONSTITUTIONAL  LAW 

will  not,  except  in  the  clearest  cases  of  error,  depart  from 
the  doctrine  of  stare  decisis.  When,  however,  public  in- 
terests are  involved,  and  especially  where  the  question  is 
one  of  constitutional  construction,  the  matter  is  otherwise. 
An  error  in  the  construction  of  a  statute  may  easily  be 
corrected  by  a  legislative  act,  but  a  Constitution,  and 
particularly  the  Federal  Constitution,  may  be  changed 
only  with  great  difficulty.  Hence  an  error  in  its  inter- 
pretation may  for  all  practical  purposes  be  corrected  only 
by  the  court's  repudiating  or  modifying  its  former  decision 


CHAPTER  IV 

THE   DIVISION    OF    POWERS    BETWEEN    THE    UNITED    STATES 
AND  ITS  MEMBER  STATES 

Federal  powers 

The  United  States  Constitution  serves  a  double  purpose. 
It  operates  as  an  instrument  to  delimit  the  several  spheres 
of  Federal  and  State  authority,  and  to  provide  for  the 
organization  of  the  Federal  Government.  In  this  chapter 
we  shall  be  concerned  with  only  the  first  of  these  two  sub- 
jects. That  vexed  question  as  to  the  original  purpose  of 
the  Constitution, — whether  intended  to  serve  as  an  agree- 
ment between  sovereign  compacting  States,  or  as  the  fund- 
amental instrument  of  government  of  a  single  sovereign 
people — it  is  fortunately  no  longer  necessary  to  discuss. 
For  the  purpose  of  a  treatise  on  the  constitutional  law  of 
the  United  States  as  it  exists  to-day  it  is  sufficient  to 
describe  the  Constitution  as  a  legal  instrument  distribu- 
ting governmental  powers  between  the  Federal  and  State 
governments  according  to  the  general  principle  that  the 
powers  granted  the  Federal  Government  are  specified, 
expressly  or  by  implication,  and  that  the  remainder  of 
the  possible  governmental  powers  "not  delegated  to  the 
United  States  by  the  Constitution,  nor  prohibited  by  it 
to  the  States,  are  reserved  to  the  States  respectively  or 
to  the  people."  l 

It  will  have  been  noticed  that  in  speaking  of  the  powers 

1  Tenth  Amendment.  As  will  presently  appear  the  grant  of  certain 
powers  to  the  Federal  Government  does  not,  until  they  are  actually 
exercised,  prevent  their  exercise  by  the  States. 

47 


48  PRINCIPLES  OF  THE  CONSTITUTIONAL 

possessed  by  the  General  Government,  the  term  "dele- 
gated" is  used,  whereas,  in  speaking  of  the  powers  pos- 
sessed by  the  States,  the  word  ''reserved"  is  employed. 
This  exhibits  the  fundamental  principle  governing  the 
division  of  powers  between  the  General  Government  and 
the  States  according  to  which  the  former  possesses  only 
those  powers  that  are  by  the  Constitution  granted  to  it, 
whereas  the  States  are  entitled  to  all  powers  except  those 
expressly  or  by  implication  denied  to  them  by  the  Con- 
stitution. Thus  the  General  Government  is  commonly 
spoken  of  as  one  of  enumerated  and  the  State  governments 
as  governments  of  unenumerated  powers.  This  distinction 
would  in  all  probability  have  been  recognized  and  adopted 
by  the  Supreme  Court  as  a  logical  corollary  from  the  gen- 
eral character  of  the  Constitution,  had  there  been  no  ex- 
press direction  in  that  instrument  itself  to  such  effect. 
Out  of  superabundant  caution,  however,  the  Tenth  Amend- 
ment was  adopted. 

The  phrase  "or  to  the  people"  covers  these  powers 
which,  though  constitutionally  exercisable  by  the  States, 
for  aught  the  Federal  Constitution  has  to  say,  are  by  their 
own  State  Constitutions  denied  to  their  respective  govern- 
ments. Thus  the  Federal  and  the  State  Constitution 
differ  in  this  important  respect  that  the  grants  of  the 
former  operate  to  endow  the  General  Government  with 
powers  that  it  would  not  otherwise  possess,  whereas  the 
provisions  of  the  latter  in  the  main  operate  to  deprive  the 
governments  which  they  create  of  powers  they  otherwise 
would  possess. 

Except  when  expressly  limited, — as,  for  instance,  where 
the  power  which  is  given  to  levy  taxes  is  restricted  by 
the  provisions  that  "all  duties,  imposts,  and  excises  shall 
be  uniform  throughout  the  United  States,"  that  "no  tax 
or  duty  shall  be  laid  on  any  article  exported  from  any 
State,"  and  that  "no  capitation  or  other  direct  tax  shall 


LAW  OF  THE  UNITED  STATES  49 

be  laid,  unless  in  proportion  to  the  census  or  enumeration 
hereinbefore  directed  to  be  taken," — a  power  granted  to 
Federal  Government  is  construed  to  be  absolute  in  char- 
acter. 

Express  and  implied  powers 

Though  the  Federal  Government  is  one  of  enumerated 
powers,  its  powers  are  not  described  in  detail,  and  from 
the  very  beginning  it  has  been  held  to  possess  not 
simply  those  powers  that  are  specifically  or  expressly  given 
it,  but  also  those  necessary  for  the  proper  and  effect- 
ive exercise  of  such  express  powers.  After  enumerating 
the  various  powers  that  Congress  is  to  possess,  the  Con- 
stitution declares  "[The  Congress  shall  have  power]  to 
make  all  laws  which  shall  be  necessary  and  proper  for 
carrying  into  execution  the  foregoing  powers,  and  all 
other  powers  vested  by  this  Constitution  in  the  Govern- 
ment of  the  United  States  or  in  any  department  or  officer 
thereof."  2  Furthermore,  it  will  be  noticed  that  in  the 
Tenth  Amendment,  above  quoted,  the  powers  reserved  to 
the  States  or  to  the  people  are  not  those  expressly  dele- 
gated to  the  United  States,  but  simply  those  not  dele- 
gated. This  is  significant  in  view  of  the  fact  that  in  the 
corresponding  section  in  the  Articles  of  Confederation 
the  word  "expressly"  is  carefully  inserted. 

Federal  powers  to  be  liberally  construed 

The  Constitution  is  in  terms  and  general  character  a 
grant  of  powers — a  grant  from  the  people  of  the  several 
States  to  the  National  Government,  and,  strictly  speaking, 
as  in  all  grants  of  power,  the  authority  that  may  be  exer- 
cised thereunder  is  to  be  limited  to  powers  specifically 
granted  or  impliedly  given.  But  whereas,  in  general, 


2  Art.  I,  §  8,  cl.  18. 
4 


50  PlUNCIPLES    OF    THE    CONSTITUTIONAL 

grants  of  power  are  strictly  construed  as  against  the 
grantee  and  in  favor  of  the  reserved  rights  of  the  grantor, 
in  the  case  of  the  Federal  Constitution  this  principle  has, 
it  is  seen,  not  been  applied.  The  justification  for  this  has 
been  deduced  from  the  general  nature  of  the  Constitu- 
tion as  an  instrument  of  government,  and  from  the  char- 
acter of  the  end  which  was  sought  to  be  obtained  by  its 
establishment.  The  Federal  Government  exists  not  for 
the  benefit  of  those  who  exercise  its  powers,  but  to  sub- 
serve the  national  interests, — political,  industrial  and 
social, — of  the  people  who  framed  and  adopted  it.  While, 
therefore,  it  is,  in  essential  character,  a  grant  of  powers, 
and  is  to  be  construed  as  such,  its  terms  are  to  be  inter- 
preted in  the  light  of  the  fact  that  the  people  in  adopting 
it  desired  the  establishment  and  maintenance  of  an  effect- 
ive National  Government,  and  therefore  one  endowed  with 
powers  commensurate  with  that  end. 

"  Necessary  and  proper  " 

In  pursuance  of  the  foregoing  principles  the  Supreme 
Court  of  the  "United  States  has,  from  the  very  beginning, 
declared  that  the  powers  thus  impliedly  granted  the 
General  Government  as  necessary  and  proper  for  the 
exercise  of  the  powers  expressly  given,  are  to  be  liberally 
construed.  The  words  " necessary  and  proper,"  it  was 
early  held,  were  not  to  be  interpreted  as  endowing  the 
General  Government  simply  with  those  powers  indis- 
pensably necessary  for  the  exercise  of  its  express  powers, 
but  as  equipping  it  with  any  and  every  authority  the 
exercise  of  which  may  in  any  way  assist  the  Federal 
Government  in  effecting  any  of  the  purposes  the  attain- 
ment of  which  is  within  its  constitutional  sphere.  Thus 
in  the  early  case  of  United  States  v.  Fisher,  decided  in 
1804,  Marshall  declared:  "It  would  be  incorrect  and 
would  produce  endless  difficulties  if  the  opinion  should 


LAW  OF  THE  UNITED  STATES    .  51 

be  maintained  that  no  law  was  authorized  which  was 
not  indispensably  necessary  to  give  effect  to  a  specified 
power.  Where  various  systems  might  be  adopted  for 
that  purpose,  it  might  be  said  with  respect  to  each 
that  it  was  not  necessary  because  the  end  might  be  ob- 
tained by  other  means.  Congress  must  possess  the  choice 
of  means  which  are  in  fact  conducive  to  the  exercise  of  a 
power  granted  by  the  Constitution."  3 

McCulloch  v.  Maryland  «, 

The  classic  statement,  however,  of  the  scope  of  the 
" implied"  powers  of  Congress  is  that  made  by  Marshall 
in  the  opinion  which  he  rendered  in  McCulloch  v.  Mary- 
land.4 In  that  great  case  the  Chief  Justice  says:\VIt 
may  with  great  reason  be  contended,  that  a  government, 
entrusted  with  such  ample  powers  [as  is  the  United  States] 
on  the  due  execution  of  which  the  happiness  and  pros- 
perity of  the  nation  so  vitally  depends,  must  be  entrusted 
with  ample  means  for  their  execution.  The  power  being 
given,  it  is  the  interest  of  the  Nation  to  facilitate  its 
execution.  It  can  never  be  their  interest  and  cannot  be 
presumed  to  have  been  their  intention,  to  stay  and  em- 
barrass its  execution  by  withholding  the  most  appropriate 
means." 

The  determination  of  what  are  appropriate  means  must, 
Marshall  goes  on  to  declare,  belong  to  the  government 
which  is  to  employ  them.  "The  government  which  has 
the  right  to  do  an  act,  and  has  imposed  on  it  the  duty 
of  performing  that  act  must,  according  to  the  dictates  of 
reason,  be  allowed  to  select  the  means.  .  .  . 

".  .  .  We  think  the  sound  construction  of  the  Con- 
stitution must  allow  to  the  national  legislature  that  dis- 


3  2  Cr.  358;  2  L.  ed.  304. 

4  4  Wh.  316;  4  L.  ed.  579. 


52  PRINCIPLES  OF  THE  CONSTITUTIONAL 

cretion,  with  respect  to  the  means  by  which  the  powers 
it  confers  are  to  be  carried  into  execution,  which  will 
enable  that  body  to  perform  the  high  duties  assigned  to 
it,  in  the  manner  most  beneficial  to  the  people.  Let  the 
end  be  legitimate,  let  it  be  within  the  scope  of  the  Con- 
stitution, and  all  means  which  are  appropriate,  which  are 
plainly  adapted  to  that  end,  which  are  not  prohibited,  but 
consistent  with  the  letter  and  spirit  of  the  Constitution, 
are  constitutional." 

^viewing  the  effect  of  this  decision  it  is  seen  that  the 
words  "and  proper"  as  used  in  the  phrase  "necessary 
and  proper"  are  not  construed  as  declaring  that  a  means 
selected  by  Congress  shall  be  proper  as  well  as  necessary, 
—that  is,  indispensable, — for  carrying  into  effect  a  speci- 
fied power,  but  as  qualifying  and  extending  the  force  of 
"necessary"  so  as  to  render  constitutional  the  selection 
of  any  means  that  may  be  appropriate,  that  is,  which 
may  in  any  way  assist  the  General  Government  in  the 
exercise  of  its  constitutional  functions.  It  need  not  be 
said  that  the  question  as  to  whether  or  not  the  means 
selected  is  the  best  possible  means  that  might  have  been 
adopted,  is  one  for  Congress  to  answer.  All  that  the 
courts  have  to  consider  in  passing  upon  its  constitutional- 
ity is  as  to  whether  it  is  calculated  in  an  appreciable 
degree  to  advance  the  constitutional  end  involved. 

Resulting  powers 

The  two  preceding  sections  have  shown  that  the  doc- 
trine of  implied  powers  is  sufficiently  broad  to  justify 
the  exercise  by  the  Federal  Government  of  powers  not 
deduced  from  specific  grants  of  authority,  but  from  the 
general  fact  that  the  United  States  is,  with  reference  to 
its  own  citizens  and  its  constituent  commonwealths,  a 
fully  sovereign  national  State,  and,  with  reference  to 
other  States,  a  political  power  equipped  with  all  the 


LAW  OF  THE  UNITED  STATES  53 

power  possessed  by  other  independent  States.  Story  in 
his  Commentaries  describes  as  " Resulting  Powers"  these 
Federal  powers  which  result  from  the  aggregate  authority 
of  the  General  Government.  That  Federal  authority 
may  be  deduced  from  this  general  source  and  that  it  is 
not  necessary  for  the  Federal  Government  to  trace  back 
every  one  of  its  powers  to  some  single  grant  of  authority, 
was  early  stated  by  Marshall  in  Cohens  v.  Virginia.5  In 
that  case  he  said:  "It  is  to  be  observed  that  it  is  not  in- 
dispensable to  the  existence  of  every  power  claimed  for 
the  Federal  Government  that  it  can  be  found  specified 
in  the  words  of  the  Constitution,  or  clearly  and  directly 
traceable  to  some  one  of  the  specified  powers.  Its  exist- 
ence may  be  deduced  fairly  from  more  than  one  of  the 
substantive  powers  expressly  defined,  or  from  them  all 
combined.  It  is  allowable  to  group  together  any  number 
of  them  and  to  infer  from  them  all  that  the  power  claimed 
has  been  conferred."  And  later  in  the  same  opinion  he 
says:  "And  it  is  of  importance  to  observe  that  Congress 
has  often  exercised,  without  question,  powers  that  are  not 
expressly  given  nor  ancillary  to  any  single  enumerated 
power." 

An  excellent  illustration  of  resulting  powers  are  those 
possessed  by  the  United  States  with  reference  to  its  con- 
trol of  foreign  relations.  Starting  from  the  premise  that 
in  all  that  pertains  to  international  relations  the  United 
States  appears  as  a  single  sovereign  nation,  and  that  upon 
it  rests  the  constitutional  duty  of  meeting  all  international 
responsibilities,  the  Supreme  Court  has  deduced  corre- 
sponding Federal  powers.  In  Fong  Yue  Ting  v.  United 
States6  that  court  say:  "The  United  States  are  a  sov- 
ereign and  independent  nation,  and  are  vested  by  the 


5  6  Wh.  264;  5  L.  ed.  257. 

6 149  U.  S.  698;  13  Sup.  Ct.  Rep.  1016;  37  L.  ed.  905. 


54  PRINCIPLES  OF  THE  CONSTITUTIONAL 

Constitution  with  the  entire  control  of  international  rela- 
tions, and  with  all  the  powers  of  government  necessary 
to  maintain  that  control  and  to  make  it  effective." 

Thus,  from  this  general  source  has  been  deduced  the 
implied  power  of  the  United  States  to  punish  the  counter- 
feiting in  this  country  of  the  securities  of  foreign  coun- 
tries, the  authority  to  annex  by  statute  unoccupied  terri- 
tory, to  establish  in  foreign  countries  judicial  tribunals, 
to  lease  and  administer  foreign  territory,  to  exclude  or 
expel  from  our  shores  undesirable  aliens,  and  in  general 
to  exercise  by  treaty  or  statute  all  those  powers  properly 
to  be  embraced  under  the  term  "foreign  relations"  which 
other  sovereign  States  possess.  The  extent  of  the  author- 
ity of  the  United  States  under  its  treaty-making  powers 
will  receive  special  treatment  in  a  later  chapter.  It  is 
sufficient  to  point  out  in  this  place  that  decisions  of  the 
Supreme  Court  have  established  the  doctrine  that  in  the 
exercise  of  its  treaty-making  powers,  and  fulfilling  its 
international  responsibilities,  the  United  States  may 
exercise  regulative  control  over  matters  which  are  not 
within  the  legislative  power  of  Congress  and  which  are 
in  general  reserved  to  the  States.  In  short,  it  may  be 
stated  as  an  established  principle  of  our  constitutional 
law  that  the  supreme  purpose  of  our  Constitution  is  the 
establishment  and  maintenance  of  a  State  which  shall  be 
nationally  and  internationally  a  sovereign  body,  and, 
therefore,  that  all  the  limitations  of  the  Constitution, 
express  and  implied,  whether  relating  to  the  reserved 
rights  of  the  States  or  to  the  liberties  of  the  individual, 
are  to  be  construed  as  subservient  to  this  one  great  fact. 

Inherent  sovereign  powers 

Sometimes  confused  with,  but  quite  distinct  from,  the 
doctrine  which  ascribes  to  the  Federal  Government  ple- 
nary authority  in  matters  international,  and  quite  different 


LAW  OF  THE  UNITED  STATES  55 

also  from  the  doctrine  of  resulting  powers,  is  that  theory 
which  argues  the  possession  generally  by  the  United 
States  of  " inherent"  sovereign  powers — that  is,  powers 
regarded  not  as  implied  in  express  grants  of  authority 
whether  singly  or  collectively  considered,  but  as  flowing 
directly  from  the  simple  fact  of  national  sovereignty. 
The  two  former  doctrines  are  fairly  deducible  from  the 
doctrine  of  implied  powers.  The  latter  doctrine,  upon  the 
contrary,  would  derive  Federal  authority,  not  from  pow- 
ers expressly  granted,  but  from  an  abstraction,  and  would, 
at  a  stroke,  equip  the  Federal  Government  with  every 
power  possessed  by  any  other  sovereign  State. 

There  can  be  no  question  as  to  the  constitutional  un- 
soundness,  as  well  as  to  the  revolutionary  character,  of 
the  theory  thus  advanced.  To  accept  it  would  be  at  once 
to  overturn  the  long  line  of  decisions  that  have  held  the 
United  States  Government  to  be  one  of  limited,  enu- 
merated powers.7 

Express  limitations  upon  the  Federal  Government. 

The  express  limitations  upon  the  powers  of  the  Federal 
Government  are  in  part  limitations  upon  the  manner  of 
exercise  of  powers  expressly  given,  as,  for  example,  that 
direct  taxes  shall  be  apportioned  among  the  several  States 
according  to  their  respective  populations,  that  naturaliza- 
tion, bankruptcy,  and  tariff  laws  shall  be  uniform  through- 

7  Ex  parte  Merryman,  Campbell's  Rep.  246.  The  Supreme  Court 
has  never  committed  itself  to  this  doctrine.  It  has,  however,  at 
times  used  language  which,  especially  when  taken  out  of  its  context, 
would  seem  to  imply  its  correctness.  See,  e.  g.,  Legal  Tender  Cases, 
12  Wall.  457;  20  L.  ed.  287;  U.  S.  v.  Jones,  109  U.  S.  513;  3  Sup.  Ct. 
Rep.  346;  27  L.  ed.  1015;  Church  v.  U.  S.,  136  U.  S.  1;  10  Sup.  Ct. 
Rep.  792,  478;  Fong  Yue  Ting  v.  U.  S.,  149  U.  S.  698;  13  Sup.  Ct. 
Rep.  1016;  37  L.  ed.  905.  But  for  an  explicit  repudiation  of  the 
doctrine  see  Kansas  v.  Colorado,  206  U.  S.  46;  27  Sup.  Ct.  Rep.  655; 
51  L.  ed.  956. 


56  PRINCIPLES  OF  THE  CONSTITUTIONAL 

out  the  United  States;  and  in  part  absolute  prohibitions 
upon  the  exercise,  in  any  manner,  of  the  powers  specified. 
These  absolute  prohibitions  are  to  be  found,  in  the  main, 
in  §  9  of  Article  I  and  in  the  first  eight  Amendments. 

In  regard  to  these  first  eight  Amendments  it  has  some- 
times been  said  that  it  was  only  an  excess  of  caution  that 
required  their  incorporation  in  the  Federal  Constitution. 
Inasmuch  as  the  United  States  was  to  have  only  the  pow- 
ers expressly  or  impliedly  given,  it  has  been  asserted  that 
the  General  Government  would  have  been,  in  the  absence 
of  such  express  limitations,  without  the  authority  to  exer- 
cise the  powers  that  these  Amendments  enumerate.  A 
consideration,  however,  of  the  construction  which  several 
of  the  provisions  of  these  Amendments  have  received, 
especially  during  recent  years,  will,  it  is  believed,  make  it 
evident  that  these  express  limitations  upon  the  Federal 
Government  have  been  of  considerable  importance. 

Implied  limitations  upon  the  Federal  Government 

The  implied  limitations  upon  the  Federal  Government 
are:  first,  those  implied  in  the  express  limitations;  and 
second,  those  which  arise  from  the  general  nature  of  the 
American  Federal  State.  The  Constitution  looks  to  a 
preservation  of  the  several  States  in  the  administrative 
autonomy  that  is  allotted  to  them,  and  from  this  is  de- 
duced the  principle  that  the  Federal  Government  may 
not,  unless  it  is  absolutely  necessary  to  its  own  efficiency, 
interfere  with  the  free  operation  of  State  governments 
by  way  either  of  imposing  upon  them  the  performance  of 
duties, 'or  of  unduly  restraining  their  freedom  of  action  by 
way  of  taxation  or  otherwise. 

The  principles  governing  the  deduction  of  implied  from 
express  limitations  upon  the  Federal  Government  are  the 
same  as  those  applicable  to  the  construction  of  implied 
powers. 


LAW  OF  THE  UNITED  STATES  57 

Exclusive  and  concurrent  Federal  powers 

The  legislative  powers  possessed  by  the  Federal  Govern- 
ment may  be  divided  into  two  classes;  the  one  embracing 
those  powers  the  exercise  of  which  is  exclusively  vested  in 
the  General  Government;  the  other  those  which,  in  default 
of  Federal  exercise,  may  be  employed  by  the  States. 

Some  of  the  powers  granted  by  the  Constitution  to  the 
General  Government  are  expressly  denied  to  the  States. 
As  to  the  exclusive  character  of  the  Federal  jurisdiction 
over  these  there  cannot  be,  of  course,  any  question.  It 
has,  however,  been  often  a  matter  difficult  of  determina- 
tion whether  or  not  various  of  the  powers  given  to  the 
United  States,  but  not  expressly  made  exclusive,  or  denied 
to  the  States,  are  so  exclusively  subject  to  Federal  control 
that  the  exercise  of  them  by  the  States  is  under  no  cir- 
cumstances to  be  permitted.  Shortly  stated,  the  principle 
that  the  Supreme  Court  has  laid  down  for  determining  this 
question  in  each  particular  case  as  it  has  arisen  has  been 
the  following:  As  regards  generally  the  powers  granted 
to  the  National  Government  there  is  a  difference  between 
those  which  are  of  such  a  character  that  the  exercise  of 
them  by  the  States  would  be,  under  any  circumstances, 
inconsistent  with  the  general  theory  or  national  polity 
of  the  Constitution,  and  those  not  of  such  a  character. 
As  regards  this  latter  class,  the  Supreme  Court  has  held 
that  as  long  as  Congress  does  not  see  fit  to  exercise  them, 
the  States  may  do  so.  Laws  thus  passed  by  the  States, 
are,  however,  subject  to  suspension  at  any  time  by  the 
enactment  by  Congress  of  laws  governing  the  same 
subjects.8 


8  Sturges  v.  Crowninshield,  4  Wh.  122,  4  L.  ed.  529.  By  the  enact- 
ment of  a  Federal  law  a  State  law  upon  the  same  subject  is  not 
nullified,  but  merely  suspended.  Upon  the  repeal  of  the  Federal 
statute  the  State  law  again  operates  without  re-enactment  by  the 
State. 


CHAPTER  V 

THE  FEDERAL  CONTROL  OF  THE  FORM  OF  STATE 
GOVERNMENTS 

State  autonomy 

In  the  foregoing  pages  the  sovereignty  of  the  United 
States  as  opposed  to,  and  inconsistent  with,  the  con- 
tinued sovereignty  of  its  individual  commonwealth  mem- 
bers has  been  sufficiently  declared.  Whatever  doubt 
there  may  have  been  upon  this  point  before  the  Civil  War, 
the  result  of  that  gigantic  struggle  has  left  no  room  for 
disagreement  since,  and  the  subsequent  unequivocal  as- 
sertions of  the  Federal  courts  have  simply  registered  con- 
clusions that  no  one  could  rationally  question.  Starting, 
then,  from  this  fundamental  fact  that,  looking  at  the 
matter  from  a  purely  legal  point  of  view,  the  individual 
Commonwealths  constitute  self-governing  but  politically 
subordinate  portions  of  the  United  States,  we  shall  now 
proceed  to  consider  the  degree  of  autonomy  secured  them 
under  the  Federal  Constitution.  This  subject  may  con- 
veniently be  divided  into  two  parts.  First,  the  degree 
of  control  that  the  Federal  Government  may  consti- 
tutionally exercise  over  the  form  of  government  that  the 
several  States  may  establish  for  themselves;  and,  secondly, 
the  extent  to  which  the  General  Government  may  super- 
vise or  control  the  exercise  by  the  States  of  those  powers 
that  are  reserved  to  them.  First,  then,  as  to  the  control 
that  may  be  constitutionally  exercised  by  the  United 
States  over  the  forms  of  government  of  its  constituent 
units. 

58 


LAW  OF  THE  UNITED  STATES  59 

Speaking  generally,  it  may  be  said  that,  provided  its 
government  be  republican  in  form,  each  State  of  the  Union 
may  establish  such  governmental  organs  as  it  sees  fit,  and 
apportion  among  them  its  executive,  legislative  and  ju- 
dicial powers  according  to  its  own  judgment  as  to  what  is 
expedient  and  proper. 

Republican  form  of  government  defined 

The  Federal  Constitution  provides  that  "The  United 
States  shall  guarantee  to  every  State  in  this  Union  a 
republican  form  of  government,  and  protect  each  of  them 
against  invasion;  and,  on  application  of  the  legislature  or 
of  the  executive  (when  the  legislature  cannot  be  convened) 
against  domestic  violence." 

In  form,  the  first  clause  of  this  section  would  appear  to 
be  for  the  benefit  of  the  States  and  to  impose  a  duty  upon 
the  Federal  Government,  and  such  undoubtedly  would 
be  its  effect  should  a  foreign  government  attempt  to  im- 
pose a  government  of  any  sort  whatsoever  upon  the  people 
of  one  of  the  States  against  their  will;  or  should  a  domestic 
revolution  result  in  the  establishment  in  power  of  a  govern- 
ment not  sanctioned  by  or  not  freely  agreed  to  by  the 
electorate.  In  fact,  however,  this  clause  was  so  inter- 
preted during  the  reconstruction  times  as  to  give  to  the 
Federal  Government  for  several  years  an  almost  unlimited 
power  of  control  of  the  domestic  affairs  of  those  States 
that  had  been  in  rebellion  against  its  authority. 

It  will  be  noticed  that  the  Constitution  does  not  itself 
define  the  term  "republican  form  of  government."  It 
has,  however,  always  been  an  accepted  rule  of  construc- 
tion, that  the  technical  and  special  terms  used  in  the 
Constitution  are  to  be  given  that  meaning  which  they  had 
at  the  time  that  instrument  was  framed.  This  is  but 
reasonable,  for,  in  default  of  anything  to  the  contrary, 
those  who  drafted  the  Constitution  are  to  be  presumed  to 


60  PRINCIPLES  OF  THE  CONSTITUTIONAL 

have  intended  the  words  which  they  used  to  have  that 
meaning  they  knew  them  to  have.  For  a  definition,  then, 
of  " republican  government"  we  must  discover  what  in 
1787  such  a  political  form  was  considered  to  be.  Cer- 
tainly we  may  say  that  the  governments  of  the  thirteen 
original  States  as  they  existed  at  the  time  the  Constitu- 
tion was  drafted  must  have  been  considered  as  illustrating 
the  republican  type.  Furthermore,  the  Constitutions  of 
all  those  States  which  have  been  admitted  to  the  Union 
since  1787  must  be  regarded  as  having  been  impliedly 
declared  republican  by  Congress  at  the  time  of  the  giving 
of  its  assent  to  their  entrance  into  the  Union. 

The  late  Judge  Cooley,  in  his  Principles  of  Constitutional 
Law,  has  perhaps  defined  the  term  as  satisfactorily  as 
anyone.1  "By  a  republican  form  of  government,"  he 
says,  "is  understood  a  government  by  representatives 
chosen  by  the  people;  and  it  contrasts  on  the  one  side 
with  a  democracy,  in  which  the  people  or  community 
as  an  organized  whole  wield  the  sovereign  powers  of 
government,  and,  on  the  other  side,  with  the  rule  of  one 
man  as  King,  Emperor,  Czar,  or  Sultan,  or  with  that  of 
one  class  of  men,  as  .an  aristocracy."  "In  strictness," 
Judge  Cooley  goes  on  to  say,  "a  republican  government  is 
by  no  means  inconsistent  with  monarchical  forms,  for  a 
King  may  be  merely  an  hereditary  or  elective  executive 
while  the  powers  of  legislation  are  left  exclusively  to  a 
representative  body  freely  chosen  by  the  people.  It  is 
to  be  observed,  however,  that  it  is  a  republican  form  of 
government  that  is  to  be  guaranteed;  and  in  the  light  of 
the  undoubted  fact  that  by  the  Revolution  it  was  expected 
and  intended"  to  throw  off  monarchical  and  aristocratic 
forms,  there  can  be  no  question  but  that  by  a  republican 
form  of  government  was  intended  a  government  in  which 


Chapter  XI. 


LAW  OF  THE  UNITED  STATES  61 

not  only  would  the  people's  representatives  make  the  laws, 
and  their  agents  administer  them,  but  the  people  would 
also,  directly  or  indirectly,  choose  the  executive.  But  it 
would  by  no  means  follow  that  the  whole  body  of  people, 
or  even  the  whole  body  of  adult  and  competent  persons, 
would  be  admitted  to  political  privileges;  and  in  any 
republican  State  the  law  must  determine  the  qualifications 
for  admission  to  the  elective  franchise." 

In  United  States  v.  South  Carolina,2  a  case  decided  in 
1905,  an  obiter  suggestion  was  made  by  the  court  in  its 
majority  opinion  that  a  State  by  assuming  control  of  the. 
manufacture  and  distribution  of  certain  commodities, 
and,  especially,  by  acquiring  and  undertaking  the  manage- 
ment of  public  utilities,  might  thereby  lose  its  republican 
form  of  government.  To  the  suggestions  thus  made  no 
great  weight  can  be  given.  Whether  or  not  a  government 
is  republican  in  form  depends  not  upon  the  sphere  of  its 
activities,  but  upon  the  manner  in  which  its  functionaries 
are  selected,  and  the  degree  of  their  legal  responsibility 
to  the  people.  Thus  there  would  be  no  difficulty  in,J;he 
most  socialistic  of  States  having  a  government  of  the 
purest  republican  type. 

Constitutionality  of  referendum 

In  the  courts  of  the  States,  general  direct  legislation 
(referendum)  laws  were  in  a  few  early  cases  held  uncon- 
stitutional on  the  ground  that  their  effect  is  to  establish  a 
democratic  in  place  of  a  republican — that  is,  a  representa- 
tive— form  of  government.  Thus,  for  example,  in  Rice 
v.  Foster,3  the  court  of  Delaware  declared:  "Although  the 
people  have  the  power,  in  conformity  with  its  provisions, 

2 199  U.  S.  437;  26  Sup.  Ct.  Rep.  110;  50  L.  ed.  261. 

3  4  Harrison,  479.  This  law  involved  only  a  local  option  law.  Its 
reasoning  applies,  however,  and  has  continued  to  be  applied  to 
general  laws.  As  to  local  option  laws,  however,  and  laws  establish- 


62  PRINCIPLES  OF  THE  CONSTITUTIONAL 

to  alter  the  Constitution,  under  no  circumstances  can  they, 
so  long  as  the  Constitution  of  the  United  States  remains 
the  paramount  law  of  the  land,  establish  a  democracy 
or  any  other  than  a  republican  form  of  government."  And 
this,  the  court  went  on  to  declare,  would  in  effect  be  done, 
should  the  electorate  be  given  a  direct  legislative  power. 

Decision  as  to  de  jure  character  of  State  governments 

Precedents  have  established  the  principle  that  where 
there  is  a  dispute^  in  a  State  as  to  the  de  jure  character 
of  a  particular  organ  of  its  government,  as,  for  example, 
as  to  which  of  two  individuals  has  been  elected  as  chief 
executive,  or  which  of  two  courts  or  legislatures  is  entitled 
to  authority,  the  Federal  Government  will  not  ordinarily 
interfere,  being  governed  by  the  principle  that  each  State 
government  has  a  tribunal  for  the  decision  of  such  con- 
tests, and  that  the  General  Government  will  consider 
itself  bound  by  the  decision  which  that  tribunal  renders, 
just  as  the  Federal  courts  hold  themselves  bound  by  the  de- 
cisions of  the  State  courts  as  to  the  existence  and,  in  gen- 
eral, the  interpretation  of  their  respective  State  statutes. 
In  two  classes  of  cases,  however,  the  Federal  Govern- 
ment exercises  the  right  to  decide  which  of  two  contesting 
State  officials  or  organs  is  to  be  recognized  as  the  de  jure 


ing  local  governments  and  equipping  them  with  adequate  powers, 
the  case  may  be  said  to  have  been  overruled.  See  Oberholtzer,  The 
Referendum  in  America.  For  a  general  discussion  of  what  constitutes 
a  government  republican  in  form,  see  Luther  v.  Borden,  7  How.  1; 
12  L.  ed.  581,  a  case  growing  out  of  Dorr's  Rebellion  in  1845  in 
Rhode  Island.  The  argument  of  Daniel  Webster  who  was  of  counsel 
is  especially  valuable.  The  use  of  this  guaranty  clause  by  the  United 
States  for  the  "reconstruction"  of  the  Southern  States  after  the 
Civil  War  is  discussed  in  the  author's  Constitutional  Law,  §  80.  A 
limited  suffrage  is  compatible  with  a  republican  form  of  government. 
Minor  v.  Happersett,  21  Wall.  162;  22  L.  ed.  627.  See  also  Luther 
v.  Borden. 


LAW  OF  THE  UNITED  STATES  63 

authority.  The  first  of  these  includes  those  cases  in  which 
a  decision  becomes  necessary  in  order  to  determine  a  mat- 
ter of  direct  Federal  concern.  Thus,  for  example,  when 
each  of  two  contesting  State  legislatures  selects  and  sends 
Senators  to  Congress,  it  is  necessary  for  the  United  States 
Senate  to  decide  which  of  the  two  electing  bodies  is  en- 
dowed with  the  authority  to  act  in  that  behalf  for  the 
State.  So,  also,  as  in  the  case  of  Dorr's  Rebellion,  where 
Federal  aid  is  needed  to  suppress  domestic  disorder,  it  is 
necessary  for  the  President  or  Congress  to  determine  which 
government,  claiming  authority,  it  will  recognize. 

The  second  class  of  cases  in  which  the  Federal  Govern- 
ment, through  its  Supreme  Court,  will  assume  jurisdiction 
of  a  dispute  between  two  parties  as  to  who  is  entitled  to 
a  State  office,  is  where  a  claim  is  made  that  the  State 
laws,  as  applied  by  the  State  authorities  in  settlement  of 
the  dispute,  have  violated  that  provision  of  the  Four- 
teenth Amendment  which  declares  that  no  State  "shall 
deprive  any  person  of  life,  liberty  or  property,  without 
due  process  of  law,"  or  have  violated  the  tenth  section 
of  Article  I  of  the  Constitution  of  the  United  States, 
which  declares  that  no  State  shall  pass  a  law  impairing 
the  obligation  of  a  contract. 

Public  office  not  a  property  or  contract  right 

The  Supreme  Court  of  the  United  States  has  held  in  an 
unqualified  manner,  that  as  between  a  State  and  an  office- 
holder, there  is  no  contract  right  possessed  by  the  latter 
either  to  the  office  or  to  the  salary  attached  to  it,  and  that, 
therefore,  in  the  absence  of  express  constitutional  provi- 
sion otherwise,  his  removal  from  office  or  the  abolishment 
of  the  office  itself  gives  him  no  cause  of  action  against 
the  State.4 


4  Butler  v.  Pennsylvania,  10  How.  402;  13  L.  ed.  472;  Taylor  v. 
Beckham,  178  U.  S.  548;  20  Sup.  Ct.  Rep.  890;  44  L.  ed.  1187. 


64  PRINCIPLES  OF  CONSTITUTIONAL  LAW 

Suits  between  two  or  more  claimants  to  State  office 

When  the  dispute  is  not  one  between  the  State  and  one 
of  its  officers,  but  between  two  individuals  each  claiming 
the  office  and  its  emoluments, — when,  in  other  words, 
the  office  itself  is  not  disturbed  nor  the  salary  changed, 
the  question  is  a  different  one.  Then,  it  would  seem,  the 
office  has  often  to  be  treated  as  a  piece  of  property  of 
which  the  owner  may  not  be  deprived  without  due  proc- 
ess of  law  even  by  the  State  itself.5 


5  Kennard  v.  Louisiana,  92  U.  S.  480;  23  L.  ed.  478;  Foster  v. 
Kansas,  112  U.  S.  205;  5  Sup.  Ct.  Rep.  8;  28  L.  ed.  696;  Boyd  v. 
Nebraska,  143  U.  S.  135;  12  Sup.  Ct.  Rep.  375;  36  L.  ed.  103;  Wilson 
v.  North  Carolina,  169  U.  S.  586;  18  Sup.  Ct.  Rep.  435;  42  L.  ed. 
865;  Taylor  v.  Beckham,  178  U.  S.  548;  20  Sup.  Ct.  Rep.  890;  44  L. 
ed.  1187. 


CHAPTER  VI 

FEDERAL    SUPERVISION    OF    STATE    ACTIVITIES;    THE    FOUR- 
TEENTH   AMENDMENT 

The  Fourteenth  Amendment 

The  question  now  to  be  considered  is  not  the  mainte- 
nance of  the  supremacy  of  the  Federal  Government,  but 
the  protection  of  individuals  in  the  enjoyment  of  rights 
and  immunities  guaranteed  to  them  by  the  Federal  Con- 
stitution. 

Prior  to  the  adoption  of  the  Fourteenth  Amendment 
in  1868  the  laws  of  the  individual  States,  so  long  as  they 
related  to  subjects  over  which  the  States  had  the  right 
of  legislation,  were  not  subject  to  examination  in  Federal 
courts  with  a  view  to  ascertaining  whether  they  deprived 
anyone  of  life,  liberty  or  property  without  due  process 
of  law,  or  denied  to  anyone  equal  legal  protection.  The 
first  nine  Amendments  to  the  Federal  Constitution  which 
enumerated  the  fundamental  rights  of  individuals  that 
might  not  be  violated  were,  from  the  beginning,  construed 
to  limit  not  the  States  but  only  the  Federal  Govern- 
ment. Until,  therefore,  the  Fourteenth  Amendment  was 
adopted  there  was,  so  far  as  the  Federal  Constitution 
was  concerned,  nothing  to  prevent  the  several  States 
from  enacting  laws  which  denied  to  their  own  citizens  the 
equal  protection  of  the  laws  or  deprived  them  of  life, 
liberty  and  property,  without  due  process  of  law.  The 
only  limitations  laid  upon  the  States  by  the  Constitution 
were  that  they  should  enact  no  bills  of  attainder,  or  ex 
post  facto  laws,  or  laws  impairing  the  obligation  of  con- 
5  65 


66  PRINCIPLES  OF  THE  CONSTITUTIONAL 

tracts.  As  a  matter  of  fact,  indeed,  all  of  the  States  had 
by  their  own  Constitutions  taken  from  their  legislatures 
the  power  to  enact  laws  upon  certain  specified  topics,  and 
forbidden  them  to  violate  certain  declared  principles  of 
justice  and  right.  But  the  adoption  of  these  constitutional 
limitations  was  purely  voluntary  on  their  part. 

In  1868,  however,  as  one  of  the  results  of  the  Civil 
War,  the  Fourteenth  Amendment  was  adopted,  which, 
after  declaring  that  "all  persons  born  or  naturalized  in 
the  United  States,  and  subject  to  the  jurisdiction  thereof, 
are  citizens  of  the  United  States  and  of  the  State  wherein 
they  reside,"  goes  on  to  provide  that  "no  State  shall 
make  or  enforce  any  law  which  shall  abridge  the  priv- 
ileges and  immunities  of  citizens  of  the  United  States; 
nor  shall  any  State  deprive  any  person  of  life,  liberty  or 
property  without  due  process  of  law;  nor  deny  to  any 
person  within  its  jurisdiction  the  equal  protection  of  the 
laws." 

For  a  number  of  years  after  the  adoption  of  this  Amend- 
ment it  was  by  no  means  certain  that  the  effect  of  the 
above-cited  provisions  would  not  be  to  endow  the  United 
States  Government  with  additional  powers  so  great  as 
fundamentally  to  alter  the  very  nature  of  the  Union 
itself.  There  can  be  no  question  that  the  clauses  of 
the  Amendment  which  have  been  quoted  were  easily 
susceptible  of  an  interpretation  that  would  have  given 
them  this  result,  and  that,  at  the  time  they  were  framed 
and  adopted  by  Congress  and  ratified  by  the  necessary 
number  of  State  legislatures,  there  were  very  many  per- 
sons who  believed  that  they  would,  and  desired  that  they 
should,  work  this  revolutionary  change  in  the  American 
constitutional  system.1  Fortunately,  however,  as  all 

1  Cf.  Flack,  The  Adoption  of  the  Fourteenth  Amendment;  also  dis- 
senting opinion  of  Justice  Field  in  Civil  Rights  Cases,  109  U,  S.  3; 
3  Sup,  Ct,  Rep,  18;  27  L,  ed,  835, 


LAW  OF  THE  UNITED  STATES  67 

must  now  believe,  the  Supreme  Court  has  been  led  to 
give  to  these  words  an  interpretation  that  has  robbed 
them  of  such  an  effect. 

This  the  court  has  been  able  to  do  by  the  principles 
which  it  has  laid  down  in  the  cases  which  follow. 

The  Slaughter  House  Cases 

The  famous  Slaughter  House  Cases,2  decided  in  1873, 
grew  out  of  the  following  facts:  The  State  of  Louisiana 
in  the  exercise  of  its  " police  powers"  had  passed  an  act 
chartering  a  company,  and  giving  to  it  the  exclusive 
right  to  establish  and  maintain  stock  yards,  landing 
places  and  slaughter  houses  in  the  city  of  New  Orleans, 
and  providing  that  all  animals  intended  for  food  should 
be  slaughtered  there.  The  plaintiffs  in  the  cases  that 
have  since  come  to  be  known  as  the  ''Slaughter  House 
Cases"  alleged  that  this  act  was  unconstitutional  as  tested 
by  the  Federal  Constitution  on  the  several  grounds  that 
it  was  in  violation  of  the  Thirteenth  Amendment  in  that 
it  created  an  involuntary  servitude  upon  the  part  of  those 
who  were  compelled  to  resort  to  this  privileged  company; 
and  that  it  was  in  violation  of  the  Fourteenth  Amendment 
in  that  it  deprived  persons  of  liberty  and  property  without 
due  process  of  law,  denied  to  them  the  equal  protection 
of  the  laws,  and  abridged  the  privileges  and  immunities 
of  citizens  of  the  United  States.  It  is  only  with  this  last- 
claim  that  we  are  now  concerned. 

As  will  later  be  seen,  the  Fourteenth  Amendment  has 
been  construed  to  give  to  the  Federal  courts  the  power  of 
examining  whether,  in  the  exercise  of  their  ordinary  police 
and  other  powers,  the  States  have  denied  to  anyone  due 
process  of  law  or  the  equality  of  the  laws.  The  claim, 
however,  that  the  rights  and  immunities  which  were  al- 


2 16  Wall.  36;21L.  ed.  394. 


68  PRINCIPLES  OF  THE  CONSTITUTIONAL 

leged  to  have  been  violated  by  the  Louisiana  statute  were 
ones  coming  within  the  meaning  of  the  phrase  "  privileges 
or  immunities  of  citizens  of  the  United  States"  as  used 
in  the  Fourteenth  Amendment,  raised  the  fundamental 
question  whether  or  not,  by  that  Amendment,  the  entire 
so-called  "  police  powers"  of  the  States  had  been  placed 
within  the  direct  legislative  definition  and  control  of  Con- 
gress. This  would  have  resulted  from  the  fact  that  by  the 
Amendment  Congress  is  given  authority  to  enforce  its 
provisions  by  appropriate  legislation.  If,  therefore,  such 
a  right  as  was  here  alleged  to  have  been  violated,  could  be 
held  to  be  a  Federal  right  it  would  be  within  the  power  of 
Congress  to  define  it,  and  all  other  similar  rights,  and  to 
impose  penalties  upon  their  violation,  and  thus  to  deprive 
the  States  of  their  entire  police  powers.  These  police 
powers,  it  is  scarcely  necessary  to  observe,  cover  almost 
the  entire  field  of  private  rights,  personal  and  propri- 
etary, including,  as  they  do,  the  general  authority  of  the 
State  to  legislate  regarding  the  social,  economic  and  moral 
welfare  of  its  citizens.  To  have  granted  the  contention 
of  the  plaintiffs  would  thus  have  made  Congress,  instead 
of  the  State  legislatures,  the  possible  source  of  the  great 
body  of  private  laws  by  which  the  citizen  is  governed.  It 
is,  therefore,  not  surprising  that  the  court  in  its  majority 
opinion  should  have  said:  "We  do  not  conceal  from 
ourselves  the  great  responsibility  which  .  .  .  devolves 
upon  us.  No  questions  so  far  reaching  and  pervading  in 
their  consequences,  so  profoundly  interesting  to  the  people 
of  this  country,  and  so  important  in  their  bearing  upon  the 
relations  of  the  United  States  and  of  the  several  States  to 
each  other,  and  to  the  citizens  of  the  States  and  of  the 
United  States,  have  been  before  this  court  during  the  of- 
ficial life  of  any  of  its  present  members." 

The  argument  of  the  plaintiffs  which  found  acceptance 
in  the  opinions  of  the  minority  of  the  court  was  that  the 


LAW  OF  THE  UNITED  STATES  69 

individual  as  a  free  man  and  citizen  of  a  State,  had,  be- 
fore the  adoption  of  the  Amendment,  certain  fundamental 
rights,  privileges  and  immunities,  which  were  determined 
by  State  statutes  and  the  general  principles  of  the  common 
law,  and  that  by  that  Amendment  the  citizen  became 
primarily  a  citizen  of  the  United  States,  and  only  sec- 
ondarily, by  residence,  a  citizen  of  a  particular  State  of 
the  Union,  and  that,  therefore,  these  fundamental  rights, 
privileges  and  immunities  which  formerly  belonged  to 
him  as  a  citizen  of  the  State  in  which  he  lived  now  became 
his  as  a  citizen  of  the  United  States,  and,  as  such,  no  longer 
subject  to  abridgment  by  the  States.  Only  by  this  in- 
terpretation, it  was  argued,  could  the  clause  of  the  Amend- 
ment which  we  are  considering,  be  given  any  force  what- 
ever. 

The  majority  of  the  court  were  not  able  to  accept  this 
construction  of  the  Amendment  which,  as  we  have  seen, 
would  have  opened  such  possibilities  of  increasing  the  Fed- 
eral powers  at  the  expense  of  those  of  the  States.  Refer- 
ring to  the  "  history  of  the  times"  in  which  the  Thirteenth, 
Fourteenth  and  Fifteenth  Amendments  were  adopted, 
the  court  found  in  them  a  unity  of  purpose, — the  protec- 
tion of  the  freed  negroes,  and  not  an  intention  radically  to 
alter  the  constitutional  character  of  the  Union.  Atten- 
tion was  called  to  the  fact  that  the  Fourteenth  Amend- 
ment implies  and  by  its  language  recognizes  a  continuance 
of  a  distinction  between  Federal  and  State  citizenship, 
and  that  from  this  it  follows  that  the  privileges  and  im- 
munities attaching  to  or  growing  out  of  each  are  to  be 
distinguished. 

Federal  privileges  and  immunities 

With  reference  to  the  question  that  is  immediately  sug- 
gested, as  to  what  are  these  distinctively  Federal  rights 
which  the  States  are  not  to  infringe,  the  court  say:  "Hav- 


70  PRINCIPLES  OF  THE  CONSTITUTIONAL 

ing  shown  that  the  privileges  and  immunities  relied  on  in 
the  argument  are  those  which  belong  to  citizens  of  the 
States  as  such,  and  that  they  are  left  to  the  State  govern- 
ments for  security  and  protection,  and  not  by  this  article 
placed  under  the  special  care  of  the  Federal  Government, 
we  may  hold  ourselves  excused  from  defining  the  privileges 
and  immunities  of  citizens  of  the  United  States  which  no 
State  can  abridge,  until  some  case  involving  those  priv- 
ileges may  make  it  necessary  to  do  so.  But  lest  it  should 
be  said  that  no  such  privileges  and  immunities  are  to  be 
found  if  those  we  have  been  considering  are  excluded,  we 
venture  to  suggest  some  which  owe  their  existence  to  the 
Federal  Government,  its  national  character,  its  Constitu- 
tion or  its  laws.  One  of.  these  is  well  described  in  the 
case  of  Crandall  v.  Nevada.3  It  is  said  to  be  the  right 
of  the  citizen  of  this  great  country,  protected  by  implied 
guarantees  of  its  Constitution,  '  to  come  to  the  seat  of 
government  to  assert  any  claim  he  may  have  upon  that 
government,  to  transact  any  business  he  may  have  with 
it,  to  seek  its  protection,  to  share  its  offices,  to  engage  in 
administering  its  functions.  He  has  the  right  of  free  ac- 
cess to  its  seaports,  through  which  all  operations  of  for- 
eign countries  are  conducted,  to  the  sub-treasuries,  land 
offices  and  courts  of  justice  in  the  several  States/  And, 
quoting  from  the  language  of  Chief  Justice  Taney  in  an- 
other case,  it  is  said,  '  that  for  all  the  great  purposes  for 
which  the  Federal  Government  was  established,  we  are 
one  people,  with  one  common  country,  we  are  all  citizens 
of  the  United  States,'  and  it  is  as  such  citizens,  that  their 
rights  are  supported  by  this  court  in  Crandall  v.  Nevada. 
Another  privilege  of  a  citizen  of  the  United  States  is  to 
demand  the  care  and  protection  of  the  Federal  Govern- 


3  6  Wall.  35;  18  L.  ed.  745.    Cf.  Cooley,  Principles  of  Constitutional 
Law,  245. 


LAW  OF  THE  UNITED  STATES  71 

ment  over  his  life,  liberty  and  property  when  on  the  high 
seas  or  within  the  jurisdiction  of  a  foreign  government. 
Of  this  there  can  be  no  doubt,  nor  that  the  right  depends 
upon  his  character  as  a  citizen  of  the  United  States.  The 
right  to  peaceably  assemble  and  petition  for  redress  of 
grievances,  the  privilege  of  the  writ  of  habeas  corpus,  are 
rights  of  the  citizen  guaranteed  by  the  Federal  Consti- 
tution. The  right  to  use  the  navigable  waters  of  the 
United  States,  however  they  may  penetrate  the  territory 
of  the  several  States,  all  rights  secured  to  our  citizens 
by  treaties  with  foreign  nations,  are  dependent  upon  cit- 
izenship of  the  United  States,  and  not  citizenship  of  a 
State.  One  of  these  privileges  is  conferred  by  the  very 
article  under  consideration.  It  is  that  a  citizen  of  the 
United  States  can,  of  his  own  volition,  become  a  citizen 
of  any  State  of  the  Union  by  a  bona  fide  residence  therein, 
with  the  same  rights  as  the  other  citizens  of  that  State. 
To  these  may  be  added  the  rights  secured  by  the  Thir- 
teenth and  Fifteenth  Articles  of  Amendment,  and  by  the 
other  clause  of  the  Fourteenth,  next  to  be  considered." 

Effect  of  Fourteenth  Amendment  upon  rights  enumerated  in 
first  eight  Amendments 

In  Ex  parte  Spies4  the  point  was  urged  upon  the  court 
that  the  privileges  and  immunities  secured  against  Fed- 
eral infringement  by  the  first  eight  Amendments  to  the 
Federal  Constitution,  were,  because  so  secured,  Federal 
privileges  and  immunities,  which,  according  to  the  Four- 
teenth Amendment,  and  the  doctrine  of  the  Slaughter 
House  Cases,  the  States  might  not  abridge  or  deny. 

The  court,  however,  found  that,  in  fact,  no  right  of 
Spies  secured  by  the  first  eight  Amendments  had  been 
violated,  and  that,  therefore;  it  was  not  necessary  to  pass 
upon  this  constitutional  point  which  his  counsel  had  raised. 

4 123  U.  S.  131;  8  Sup.  Ct.  Rep.  22;  31  L.  ed.  80. 


72  PRINCIPLES  OF  THE  CONSTITUTIONAL 

In  Maxwell  v.  Dow,5  however,  the  court  found  itself 
compelled  to  pass  specifically  upon  this  point.  The  court 
in  its  majority  opinion  denied  the  claim  set  up,  asserting 
that  the  mere  fact  that  a  certain  privilege  or  immunity 
was  guaranteed  against  Federal  infringement  did  not 
operate  to  make  such  a  privilege  or  immunity  distinctively 
Federal  in  character.  With  reference  to  the  rights  enu- 
merated in  the  first  eight  Amendments,  the  court  said:  "In 
none  are  the  privileges  or  immunities  granted  and  belong- 
ing to  the  individual  as  a  citizen  of  the  United  States,  but 
they  are  secured  to  all  persons  as  against  the  Federal 
Government,  entirely  irrespective  of  such  citizenship. 
As  the  individual  does  not  enjoy  them  as  a  privilege  of 
citizenship  of  the  United  States,  therefore,  when  the  Four- 
teenth Amendment  prohibits  the  abridgment  by  the 
States  of  those  privileges  and  immunities  which  he  enjoys 
as  such  citizen,  it  is  not  correct  or  reasonable  to  say  that 
it  covers  and  extends  to  certain  rights  which  he  does  not 
enjoy  by  reason  of  his  citizenship,  but  simply  because 
those  rights  exist  in  favor  of  all  individuals  as  against  the 
Federal  governmental  powers." 

In  Minor  v.  Happersett 6  it  was  held  that  the  suffrage 
is  not  a  right  springing  from  Federal  citizenship.  This 
doctrine  was  declared  in  passing  upon  the  claim  made  by 
a  woman  that  because  of  her  Federal  citizenship  she  could 
not  constitutionally  be  disqualified  from  voting  on  account 
of  her  sex.  In  passing  upon  this  claim  the  court  admitted 
that  citizenship  was  not  dependent  upon  sex,  but  denied 
that  the  right  of  suffrage  was  necessarily  attached  to  the 
status  of  citizenship. 


5  176  U.  S.  581;  20  Sup.  Ct.  Rep.  448;  44  L.  ed.  597.    The  dissent- 
ing opinion  of  Justice  Harlan  is  a  vigorous  argument  for  a  wider 
definition  of  Federal  privileges  and  immunities. 

6  21  Wall.  162;  22  L.  ed.  627. 


LAW  OF  THE  UNITED  STATES  73 

Legislative  power  granted  Congress  by  the  Fourteenth 
Amendment 

From  the  foregoing  cases  it  appears  that  the  clause  of 
the  Fourteenth  Amendment  which  declares  that  "No 
State  shall  make  or  enforce  any  law  which  shall  abridge 
the  privileges  or  immunities  of  citizens  of  the  United 
States/'  has  not  given  to  the  General  Government  any 
legislative  or  even  supervisory  power  which  it  did  not 
possess  before  the  Fourteenth  Amendment  was  adopted. 

In  the  Civil  Rights  Cases,7  decided  in  1883,  the  court 
laid  down,  authoritatively  and  finally  that  it  is  not  within 
the  legislative  power  of  Congress  to  define  what  are  the 
civil  rights  of  life,  liberty  and  property  of  individuals,  and 
to  affix  and  enforce  penalties  for  their  denial  by  private 
persons.  Hence  the  court  held  unconstitutional  and  void 
those  portions  of  the  Civil  Rights  Act  of  1875  which  at- 
tempted to  do  this.  "Individual  invasion  of  individual 
rights,"  the  court  said,  "is  not  the  subject-matter  of  the 
Amendment.  It  does  not  authorize  Congress  to  create  a 
code  of  municipal  law  for  the  regulation  of  private  rights; 
but  to  provide  modes  of  redress  against  the  operation  of 
State  laws,  and  the  action  of  State  officers,  executive  or 
judicial,  when  these  are  subversive  of  the  fundamental 
rights  specified  in  the  Amendment." 

The  importance  of  the  doctrine  declared  in  the  Civil 
Rights  Cases  is  seen  when  the  results  which  would  have 
followed  from  a  different  construction  of  the  Amendment 
are  considered.  If  the  Civil  Rights  Act  had  been  held 
appropriate  for  enforcing  the  prohibitions  of  that  article 
it  would  have  been,  as  the  court  observes,  difficult  to  set 
limits  to  the  powers  of  Congress.  With  equal  authority, 
that  body  would  have  the  right  to  enact  a  detailed  code  of 
laws  for  the  enforcement  and  protection  of  all  the  rights  of 


7 109  U.  S.  3;  3  Sup.  Ct.  Rep.  18;  27  L.  ed.  835. 


74  PRINCIPLES  OF  THE  CONSTITUTIONAL 

life,  liberty  and  property,  and  itself  prescribe  what  should 
constitute  due  process  of  law  in  every  possible  case. 

It  will  have  been  noticed  that  the  doctrine  of  the  Civil 
Rights  Cases  depended  in  large  measure  upon  the  as- 
sertion that  the  prohibitions  of  the  Fourteenth  Amendment 
were  directed  exclusively  against  State  acts,  that  is,  acts 
authoritatively  sanctioned  by  the  States  as  such,  or  offi- 
cially performed  by  their  agents,  and  that  they  had  no 
reference  to  the  acts  of  private  individuals.  This  doctrine 
had  already  been  established  in  a  line  of  cases  prior  to  the 
Civil  Rights  Cases.8 

Although,  by  the  decisions  in  the  Slaughter  House  and 
subsequent  cases  in  the  Supreme  Court,  the  commands 
laid  upon  the  States  to  respect  Federal  privileges  and  im- 
munities have  thus  been  shorn  of  all  but  declaratory  signifi- 
cance, and  the  general  police  powers  confirmed  in  the  Com- 
monwealths, the  other  prohibitions  of  the  first  section  of 
the  Fourteenth  Amendment  have  been  so  construed  by 
the  Supreme  Court  as  to  give  to  the  Federal  Government 
a  very  extensive  supervisory  jurisdiction  over  State  legis- 
lation which  it  did  not  possess  prior  to  1868.  Whenever 
a  claim  has  been  made  that  a  State  law  has  worked  a  dep- 
rivation of  life,  liberty  or  property,  without  due  process 
of  law,  or  has  resulted  in  a  denial  to  any  person  of  the  equal 
protection  of  the  laws,  the  Federal  courts  have  assumed  jur- 


8  Strauder  v.  West  Virginia,  100  U.  S.  303;  25  L.  ed.  664;  Virginia 
v.  Rives,  100  U.  S.  313;  25  L.  ed.  667;  Ex  parte  Virginia,  100  U.  S. 
339;  25  L.  ed.  676;  Logan  v.  U.  S.,  144  U.  S.  263;  12  Sup.  Ct.  Rep. 
617;  36  L.  ed.  429;  James  v.  Bowman,  190  U.  S.  127;  23  Sup.  Ct.  Rep. 
678;  47  L.  ed.  979.  As  to  the  power  of  Congress  to  provide  for  the 
punishment  of  individuals  interfering  with,  or  conspiring  to  interfere 
with  the  exercise  by  others  of  rights  created  by  or  dependent  upon 
the  Federal  Constitution  or  laws,  see  Ex  parte  Yarbrough,  110  U. 
S.  651;  4  Sup.  Ct.  Rep.  152;  28  L.  ed.  274;  Motes  v.  U.  S.,  178  U.  S. 
458;  20  Sup.  Ct.  Rep.  993;  44  L.  ed.  1150.  Cf.  also  In  re  Debs,  158 
U.  S.  564;  15  Sup.  Ct.  Rep.  900;  39  L.  ed.  1092. 


LAW  OF  THE  UNITED  STATES  75 

isdiction;  and,  when  the  claim  has  been  sustained,  they  have 
declared  such  statutes  void.  Illustrations  of  this  Federal 
supervisory  power  will  appear  throughout  this  treatise. 

Summary 

By  way  of  resume*  we  may  say  that,  as  interpreted  by 
the  Supreme  Court,  the  adoption  of  the  Fourteenth 
Amendment  has  not  brought  about  any  fundamental 
change  in  our  constitutional  system.  No  new  subjects 
have  been  brought  within  the  sphere  of  direct  control  of 
the  Federal  Government.  No  new  privileges  and  im- 
munities of  Federal  citizenship  have  been  created  or  recog- 
nized. To  Congress  has  been  given  no  new  direct  pri- 
mary, legislative  power.  It  has  not  been  authorized  by  the 
Amendment  to  determine  or  define  the  privileges  and 
immunities  of  Federal  citizenship,  nor  to  define  and 
affirmatively  to  provide  for  the  protection  of  the  rights  of 
life,  liberty  and  property,  nor  by  direct  legislation  to 
enumerate  and  describe  the  privileges  which  shall  con- 
stitute the  equal  protection  of  the  laws.  The  only  legis- 
lative power  granted  to  Congress  by  the  Amendment,  is 
the  power  to  provide  modes  of  relief  in  cases  where  the 
States  have  deprived  individuals  or  corporations  of  life, 
liberty  or  property  without  due  process  of  law,  or  denied 
to  anyone  within  their  jurisdiction  the  equal  protection 
of  the  laws.  The  supervisory  powers  of  the  Federal  courts 
have  been  enormously  increased;  as,  by  the  Amendment, 
they  may  examine  every  claim  of  violations  by  States 
of  the  prohibitions  laid  upon  them  by  the  Amendment, 
and  where  the  claim  is  sustained  grant  the  necessary 
relief,  either  by  the  issuance  of  the  appropriate  writ,  or 
by  holding  void  the  offending  State  laws.  In  fine,  then, 
the  Fourteenth  Amendment  has  operated  rather  as  a  lim- 
itation upon  the  powers  of  the  States  than  as  a  grant  of 
additional  powers  to  the  General  Government, 


CHAPTER  VII 

INTERSTATE   RELATIONS;   FULL   FAITH  AND   CREDIT  CLAUSE 

States  independent  of  one  another 

In  the  chapters  which  have  gone  before  the  constitu- 
tional relations  which  exist  between  the  Federal  Govern- 
ment on  the  one  side  and  the  States  upon  the  other  side 
have  been  considered.  In  the  present  and  next  following 
chapters  a  description  will  be  given  of  the  relations  which 
exist  between  the  several  States. 

Except  as  otherwise  specifically  provided  by  the  Fed- 
eral Constitution,  the  States  of  the  American  Union,  when 
acting  within  the  spheres  of  government  reserved  to  them, 
stand  towards  one  another  as  independent  and  wholly 
separated  States.  The  laws  of  each  State  have  no  force, 
and  their  officials  have  no  public  authority,  outside  of 
their  own  territorial  boundaries.  As  to  all  these  mat- 
ters their  relations  inter  se  are  governed  by  the  general 
principles  of  Private  International  Law,  or,  as  otherwise 
termed,  the  Conflict  of  Laws. 

During  the  colonial  period  the  judgments  of  the  courts 
of  the  colonies  were,  as  to  one  another,  strictly  foreign 
judgments.  That  is,  they  could  be  impeached  for  fraud 
or  prejudice,  and  their  merits  re-examined.  The  incon- 
venience of  this  state  of  affairs  was  soon  recognized,  and 
in  the  Articles  of  Confederation  it  was  provided  that 
"Full  faith  and  credit  shall  be  given  in  each  of  these 
States  to  the  records,  acts,  and  judicial  proceedings  of  the 
courts  and  magistrates  of  every  other  State."  The  im- 
portant difference  between  this  provision  and  the  corre- 
sponding one  in  the  present  Constitution  is  that  now  Con- 
76 


LAW  OF  THE  UNITED  STATES  77 

gress  is  given  authority  to  fix  by  statute  the  manner  in 
which  these  acts,  records  and  proceedings  shall  be  proved 
and  to  determine  the  effect  that  shall  be  given  them.1 

This  full  faith  and  credit  clause,  it  is  to  be  observed,  has 
reference  only  to  the  States,  and  not  to  the  Territories 
or  to  the  District  of  Columbia.  Therefore  it  has  been 
decided  that  the  acts  of  Congress,  regulating  the  subject 
in  so  far  as  they  have  reference  to  the  Territories  and  to 
the  District  of  Columbia,  rests  for  their  constitutionality 
upon  other  clauses  of  the  Constitution.2 

The  same  reasoning  that  supports  the  power  of  Congress 
to  give  to  judgments  rendered  in  the  District  of  Columbia 
full  faith  and  credit  in  the  States,  is  sufficient  to  support 
its  power  to  give  equal  faith  in  the  States  to  judgments 
rendered  in  the  Territories  and  insular  possessions  of  the 
United  States,  and  vice  versa  as  to  State  judgments  sued 
upon  in  the  Territories  or  in  the  insular  possessions. 

Federal  judgments  and  decrees 

In  numerous  cases  it  has  been  held  that  full  faith  and 
credit  is  to  be  given  to  judgments  of  Federal  courts  ob- 
tained in  one  State  or  Territory  when  sought  to  be  enforced 
in  the  courts  of  another  State  or  Territory,  or  the  District 
of  Columbia.  This  is  due  to  the  fact  that,  as  the  Supreme 
Court  say  in  Claflin  v.  Houseman,3  "The  United  States 
is  not  a  foreign  sovereignty  as  regards  the  several  States, 
but  is  a  concurrent,  and,  within  its  jurisdiction,  a  para- 
mount sovereignty." 

Full  faith  and  credit  clause  applies  only  to  civil  judgments 

and  decrees 
It  seems  scarcely  necessary  to  say  that  the  "full  faith 


1  For  the  legislation  determining  these  matters  see  Acts  of  1790 
and  1809,  and  §  905,  Revised  Statutes. 

2  Embry  v.  Palmer,  107  U.  S.  3;  2  Sup.  Ct.  Rep.  25;  27  L.  ed.  346. 

3  93  U.S.  130;  23  L.  ed.  833. 


78  PRINCIPLES  OF  THE  CONSTITUTIONAL 

and  credit"  clause  has  reference  only  to  civil  judgments. 
No  State,  it  has  been  held,  is  by  this  provision  compelled 
to  lend  its  aid  in  the  enforcement  of  the  penal  laws  of 
another.  This  was  definitely  determined  in  Wisconsin 
v.  Pelican  Insurance  Co.4  That  clause,  and  the  acts  of 
Congress  under  it,  it  is  declared  in  that  case,  establish  a 
rule  of  evidence  rather  than  of  jurisdiction.  "  While 
they  make  the  record  of  a  judgment,  rendered  after  due 
notice  in  one  State,  conclusive  evidence  in  the  courts  of 
another  State  or  of  the  United  States,  of  the  matter  ad- 
judged, they  do  not  affect  the  jurisdiction  either  of  the 
court  in  which  the  judgment  is  rendered  or  of  the  court 
in  which  it  is  offered  in  evidence.  Judgments  recovered 
in  one  State  of  the  Union,  when  proved  in  the  courts  of 
another  government,  whether  State  or  national,  within 
the  United  States,  differ  from  judgments  recovered  in  a 
foreign  country  in  no  other  respect  than  in  not  being  re- 
examinable  on  their  merits,  nor  impeachable  for  a  fraud 
in  obtaining  them,  if  rendered  by  a  court  having  juris- 
diction of  the  cause  and  of  the  parties.  In  the  words  of 
Justice  Story  .  .  .  l  the  Constitution  did  not  mean  to 
confer  any  new  power  upon  the  States,  but  simply  to 
regulate  the  effect  of  their  acknowledged  jurisdiction  over 
persons  and  things  within  their  territory.  It  does  not 
make  the  judgments  of  other  States  domestic  judgments 
to  all  intents  and  purposes,  but  only  gave  a  general  valid- 
ity, faith  and  credit  to  them  as  evidence.  No  execution 
can  issue  upon  such  judgments  without  a  new  suit  in  the 
tribunals  of  other  States.  And  they  enjoy  not  the  right 
of  priority  or  lien  which  they  have  in  the  State  where  they 
are  pronounced,  but  that  only  which  the  lex  fori  gives  to 
them  by  its  own  laws  in  their  character  of  foreign  judg- 
ments.'" 


4 127  U.  S.  265;  8  Sup.  Ct.  Rep.  1370;  32  L.  ed.  239. 


LAW  OF  THE  UNITED  STATES  79 

As  being  simply  evidence,  judgments  of  the  courts  of 
one  State,  when  sued  upon  in  another  State,  are  subject, 
as  regards  procedure  and  remedies,  to  the  laws  of  the 
latter  State.  For  example,  the  statute  of  limitations  of 
the  State  where  suit  is  brought  is  applied  even  though  it 
provides  a  shorter  term  of  years  than  that  existing  in  the 
State  in  which  the  judgment  was  originally  obtained. 

It  has  been  held  in  numerous  cases  that  each  State  of 
the  Union  may  enforce  in  its  own  courts  which  have  juris- 
diction of  the  parties  and  subject-matter,  civil  rights  of 
action  depending  solely  upon  the  statutes  of  another 
State,  provided  there  be  no  local  policy  of  the  forum  in- 
consistent therewith.5  These  cases  do  not,  however, 
come  under  the  operation  of  the  full  faith  and  credit 
clause. 

Judgments  in  rem  and  in  personam 

The  validity  of  judgments  or  decrees  in  States  other 
than  those  in  which  they  are  obtained  depends  solely  upon 
the  court  which  rendered  them  having  obtained  juris- 
diction. In  order  to  obtain  jurisdiction  in  actions  in  rem, 
the  res  must  be  located  in  the  State.  In  all  actions  serv- 
ice of  notice  of  the  commencement  of  the  suit  must  be 
had  upon  the  defendants.  In  actions  in  rem  this  service 
need  not  be  actual,  but  may  be  constructive,  that  is,  by 
publication.  In  actions  'in  personam,  however,  actual  serv- 
ice is  required.  Mere  constructive  service  will  not  war- 
rant a  personal  judgment  or  decree  which  may  be  sued 
upon  in  another  jurisdiction.6 


5  Dennick  v.  Central  R.  R.  Co.,  103  U.  S.  11;  26  L.  ed.  439;  Slater 
v.  Mexican  National  R.  R.  Co.,  194  U.  S.  120;  24  Sup.  Ct.  Rep.  581; 
48  L.  ed.  900;   Atchison,  etc.,  R.  R.  Co.  v.  Sowers,  213  U.  S.  55;  29 
Sup.  Ct.  Rep.  397;  53  L.  ed.  695. 

6  Pennoyer  v.  Neff,  95  U.  S.  714;  24  L.  ed.  565;  Fall  v.  Easton,  215 
U.  S.  1;  30  Sup.  Ct.  Rep.  3;  54  L.  ed.  1.    As  to  whether  the  court  in 


80  PRINCIPLES  OF  THE  CONSTITUTIONAL 

Marriage  and  divorce 

The  force  and  meaning  of  the  "full  faith  and  credit" 
clause  of  the  Constitution  has  been  especially  worked  out 
with  reference  to  the  subject  of  marriage  and  divorce  and 
it  will,  therefore,  be  proper  to  state  briefly  the  position 
that  the  Supreme  Court  has  taken  upon  this  point. 

Generally  speaking,  it  has  been  held  that  jurisdiction  to 
grant  a  divorce  depends  upon  the  domicile  of  the  com- 
plainant or  of  the  defendant.  With  hardly  an  exception, 
all  of  the  States  of  the  Union  recognize  the  possibility  of 
the  wife  obtaining  a  domicile  separate  from  that  of  her  hus- 
band. Until  recently,  however,  a  few  States  (among  them 
New  York)  held  that  where  the  husband  and  wife  were 
domiciled  in  different  States,  decrees  of  divorce  granted 
in  either  State  would  not  have  to  be  given  full  faith  and 
credit  in  the  other  States.  The  unconstitutional! ty  of 
this  doctrine  was,  however,  declared  by  the  United  States 
Supreme  Court  in  Atherton  v.  Atherton.7 

One  State  of  the  Union  is,  of  course,  not  obliged  to  recog- 
nize the  validity  of  a  divorce  granted  by  a  court  of  another 
State  unless  that  State  had  jurisdiction  to  grant  it, — a  juris- 
diction, which,  as  just  said,  is  held  to  depend  upon  the  domi- 
cile of  one  or  both  of  the  parties.  No  valid  decree  of  di- 
vorce can,  therefore,  be  granted,  on  constructive  service,  by 
the  courts  of  a  State  in  which  neither  party  is  domiciled.8 


which  suit  is  brought  upon  a  judgment  obtained  in  another  State 
of  the  Union  may  examine  the  facts  upon  which  that  judgment  was 
based,  and  refuse  to  it  full  faith  and  credit  if  found  to  be  based  upon 
facts  such  as  would  not  support  a  legal  claim  under  the  law  of  the 
State  in  which  enforcement  is  sought.  See  Fauntleroy  v.  Lum,  210 
U.  S.  230;  28  Sup.  Ct.  Rep.  641;  52  L.  ed.  1039.  See  also  Anglo- 
American  Provision  Co.  v.  Davis  Provision  Co.,  191  U.  S.  373;  24 
Sup.  Ct.  Rep.  92;  48  L.  ed.  225;  and  Bonaparte  v.  Tax  Court,  104 
U.  S.  592;  26  L.  ed.  845. 

7 181  U.  S.  155;  21  Sup.  Ct.  Rep.  544;  45  L.  ed.  794. 

8  Bell  v.  Bell,  181  U.  S.  175;  21  Sup.  Ct.  Rep.  551;  45  L.  ed.  804. 


LAW  OF  THE  UNITED  STATES  81 

Where  the  plaintiff  has  not  a  bona  fide  domicile  in  the 
State,  a  court  cannot  render  a  decree  binding  in  other 
States  even  if  the  non-resident  defendant  voluntarily 
enters  a  personal  appearance.9  Of  course,  however,  there 
is  nothing  to  prevent  courts  of  one  State  from  recogniz- 
ing, if  they  see  fit,  a  decree  thus  granted  in  another  State. 
The  provision  of  the  Federal  Constitution  is  brought  into 
force  only  when  State  courts  refuse  to  grant  full  faith  and 
credit.10 

Finally  it  should  be  said  that  in  all  cases  where  the  de- 
fendant has  not  been  summoned  within  the  State,  or  has 
not  voluntarily  appeared,  the  decree  that  is  rendered  has 
no  extraterritorial  force  except  as  dissolving  the  matri- 
monial status.  It  cannot  settle  in  an  extraterritorial 
manner  questions  of  property  rights,  custody  of  children 
and  the  payment  of  alimony. 

Until  the  decision  in  1906  of  Haddock  v.  Haddock,11  it 
had  been  supposed  that  a  decree  of  divorce  granted  the 
husband  or  wife  by  a  court  of  the  State  in  which  he  or  she 
was  domiciled,  if  the  notice  of  the  beginning  of  the  suit  re- 
quired by  the  local  law  had  been  served  actually  or  con- 
structively upon  the  other  party,  was  in  all  cases  valid 
in  other  States.  This,  it  has  been  thought,  had  been  de- 
termined in  Atherton  v.  Atherton.  In  the  Haddock  case, 
however,  the  Supreme  Court  held  that  a  State  court  was 
not  obligated  to  recognize  a  divorce  obtained  in  another 
State  which  was  the  then  domicile  of  the  husband,  who 
was  the  complainant,  when  the  wife  had  continued  to  re- 
side in  another  State  which  was  the  original  matrimo- 
nial domicile,  and  had  received  only  constructive  notice. 


9  Andrews  v.  Andrews,  188  U.  S.  14;  23  Sup.  Ct.  Rep.  237;  47  L. 
ed.  366. 

10  Lynde  v.  Lynde,  181  U.  S.  183;  21  Sup.  Ct.  Rep.  555;  45  L.  ed. 
810. 

11  201  U.  S.  562;  26  Sup.  Ct,  Rep.  525;  50  L.  ed.  867. 

6 


82  PRINCIPLES  OF  CONSTITUTIONAL  LAW 

In  effect,  the  court  held  that  a  suit  for  divorce  is  essen- 
tially an  action  in  personam;  that,  where,  as  in  the  case  at 
bar,  the  husband  had  wrongful!}'  deserted  his  wife  she 
could  retain  her  domicile  separate  from  that  of  her  hus- 
band, and  that,  therefore,  the  decree  rendered  without 
personal  service  upon  her  need  not  be  recognized  outside 
of  the  State  where  pronounced.  In  result,  the  law  would 
then  seem  to  be  that,  in  order  to  render  a  decree  of  di- 
vorce which  must  be  recognized  by  the  courts  of  the  other 
States,  a  court  must  have  jurisdiction  of  both  parties — of 
the  complainant  by  a  bona  fide  residence  creating  a  domi- 
cile, and  of  the  defendant  either  by  domicile  in  the  State, 
by  personal  service,  or  actual  appearance,  or  by  con- 
structive service.  But  that  this  constructive  service  can- 
not be  relied  upon  in  cases  wherein  the  defendant  having 
had  good  reason  for  separating  from  the  complainant,  has 
obtained  or  retained  a  domicile  in  another  State.  It  is 
to  be  confessed,  however,  that  the  law  upon  this  subject 
has  been  unsettled  by  the  Haddock  case,  so  that  a  certain 
statement  of  its  status  is  difficult  if  not  impossible.12 

12  See  Harvard  Law  Review,  XIX,  586;  and  the  Greenbag,  XVIII, 
348. 


CHAPTER  VIII 

INTERSTATE  RELATIONS;  THE  COMITY  CLAUSE 

Privileges  and  immunities 

Article  IV,  §  2  of  the  Constitution  declares  that  "the 
citizens  of  each  State  shall  be  entitled  to  all  privi- 
leges and  immunities  of  citizens  in  the  several  States." 
This  provision  has  for  its  general  aim  the  prevention  of 
arbitrary  and  vexatious  discriminations  by  the  several 
States  in  favor  of  their  own  citizens  and  against  the  citi- 
zens of  other  States.  "It  was  undoubtedly  the  object 
of  the  clause  in  question,"  say  the  Supreme  Court  in  Paul 
v.  Virginia,1  "to  place  the  citizens  of  each  State  upon  the 
same  footing  with  citizens  of  other  States,  as  far  as  the 
advantages  resulting  from  citizenship  in  those  States  are 
concerned.  It  relieves  them  from  the  disabilities  of  alien- 
age in  other  States;  it  inhibits  discriminating  legislation 
against  them  by  other  States;  it  gives  them  the  right  of 
free  ingress  in  other  States,  and  egress  from  them;  it 
insures  to  them  in  other  States  the  same  freedom  pos- 
sessed by  the  citizens  of  those  States  in  the  acquisition 
and  enjoyment  of  property  and  in  the  pursuit  of  happi- 
ness; and  it  secures  to  them  in  other  States  the  equal 
protection  of  their  laws.  It  has  been  justly  said  that  no 
provision  in  the  Constitution  has  tended  so  strongly  to 
constitute  the  citizens  of  the  United  States  one  people 
as  this.  Indeed,  without  some  provision  of  the  kind, 
removing  from  the  citizens  of  each  State  the  disabilities 


8  Wall.  168;  19  L.  ed.  357. 

83 


84  PRINCIPLES  OF  THE  CONSTITUTIONAL 

of  alienage  in  the  other,  and  giving  them  equality  of 
privileges  with  citizens  of  those  States,  the  Republic 
would  have  constituted  little  more  than  a  league  of 
States;  it  would  not  have  constituted  the  Union  which 
now  exists." 

Political  privileges 

The  interstate  comity  clause  of  the  Federal  Constitu- 
tion does  not  compel  the  several  States  to  grant  to  resi- 
dent citizens  of  the  other  States  immediately  upon  their 
entrance  into  the  State  the  political  privileges  extended  to 
their  own  citizens.  This  the  Supreme  Court  has  held  from 
the  very  beginning  and  has  recently  reaffirmed  in  the  case 
of  Blake  v.  McClung.3 

Finally,  it  is  to  be  said,  the  several  States  may  impose 
upon  non-residents  such  special  limitations  and  obligations 
as  are,  in  aim  and  effect,  not  discriminative  but  reasonably 
necessary  for  the  protection  of  their  own  citizens  from 
fraud,  disease  or  injury  of  any  sort.  Thus,  as  an  ex- 
ample, though  the  citizens  of  other  States  may  not  be 
forbidden  to  sue  in  the  courts  of  the  State,  they  may  be 
required  to  give  bonds  for  costs  not  exacted  of  residents.4 

In  McCready  v.  Virginia  5  the  important  limitation  of 
the  clause  was  established  that  a  citizen  of  one  State  is 
not,  of  constitutional  right,  entitled  to  share  upon  equal 
terms  with  the  citizens  of  another  State  those  proprietary 
interests  which  may  be  said  to  belong  generally  to  that 

2  The  courts  have  never  attempted  a  complete  list  of  the  priv- 
ileges and  immunities  guaranteed  by  this  clause,  but  for  partial 
enumerations  see  Corfield  v.  Coryell,  4  Wash.  C.  C.  371;  and  Ward 
v.  Maryland,  12  Wall.  418,  20  L.  ed.  449.  %See  also  two  articles  by 
W.  J.  Meyers  in  Michigan  Law  Review,  I,  286,  364,  entitled  "The 
Privileges  and  Immunities  of  Citizens  in  the  Several  States." 

3 172  U.  S.  239;  19  Sup.  Ct.  Rep.  165;  43  L.  ed.  432. 

4  Chemung  Canal  Bank  v.  Lowery,  93  U.  S.  72;  23  L.  ed.  806. 

694U.  S.  391;  24  L.  ed.  248. 


LAW  OF  THE  UNITED  STATES  85 

State  as  such.  This  case  involved  the  right  of  cultivating 
oysters  on  beds  of  the  tide  waters  of  the  State.  The 
court  in  its  opinion  say:  "We  think  we  may  safely  hold 
that  the  citizens  of  one  State  are  not  invested  by  this 
clause  of  the  Constitution  with  any  interest  in  the  common 
property  of  the  citizens  of  another  State." 

Privileges  of  one  State  not  carried  into  other  States 

The  comity  clause  does  not  entitle  a  citizen  within 
his  own  State  to  privileges  and  immunities  which  may  be 
granted  by  other  States  to  their  citizens.  In  other  words, 
it  does  not  require  that  when  a  right  is  granted  by  any  one 
of  the  States  of  the  Union  to  its  citizens,  it  thereby  be- 
comes a  right  which  all  the  other  States  must  grant  to 
their  citizens. 

It  also  scarcely  needs  argument  that  under  this  special 
privileges  clause  a  citizen  of  one  State  residing,  or  having 
legal  interests  in  another  State,  may  not  lay  claim  to 
privileges  and  immunities  which  his  own  State  grants 
him,  but  which  the  other  State  does  not  grant  to  its  citi- 
zens.6 

Corporations  not  citizens  within  the  meaning  of  the  comity 

clause 

In  Paul  v.  Virginia  the  doctrine,  never  since  questioned, 
was  laid  down  that  a  corporation  is  not  a  citizen  within 
the  meaning  of  the  term  as  used  in  the  comity  clause. 
Inasmuch  as  a  corporation  is  the  mere  creation  of  local 
law,  the  court  declare  that  it  can  have  no  legal  existence, 
or  right  to  do  business,  beyond  the  limits  of  the  sovereignty , 
by  which  it  was  created.  In  other  words,  the  interstate 
comity  clause  of  the  Federal  Constitution  does  not  neces- 
sitate the  recognition  by  the  several  States  of  corporations 


Paul  v.  Virginia,  8  Wall.  168;  19  L.  ed.  357. 


86  PRINCIPLES  OF  CONSTITUTIONAL  LAW 

created  by  any  of  the  other  States.  "  Having  no  absolute 
right  of  recognition  in  other  States,"  the  court  say,  "but 
depending  for  such  recognition  and  enforcement  of  its 
contracts  upon  their  assent,  it  follows,  as  a  matter  of 
course,  that  such  assent  may  be  granted  upon  such  terms 
and  conditions  as  those  States  may  think  proper  to  im- 
pose. They  may  exclude  the  foreign  corporation  entirely, 
they  may  restrict  its  business  to  particular  localities,  or 
they  may  exact  such  securities  for  the  performance  of  its 
contracts  with  their  citizens  as  in  their  judgment  will 
best  promote  the  public  interest.  The  whole  matter  rests 
in  their  discretion." 

The  principle  of  State  omnipotence  when  dealing  with 
the  corporations  of  other  States  is,  however,  limited  in 
three  very  important  respects.  In  so  far  as  such  corpora- 
tions are  engaged  in  the  conduct  of  interstate  commerce 
they  may  not  be  controlled,  the  regulation  of  this  subject 
being  exclusively  a  Federal  concern;  they  may  not  be 
deprived  of  property  without  due  process  of  law  or  denied 
the  equal  protection  of  the  laws;  and  the  obligations  of 
contracts  entered  into  by  them  may  not  be  impaired.7 

7  See,  for  example,  Blake  v.  McClung,  172  U.  S.  239;  19  Sup:  Ct. 
Rep.  165;  43  L.  ed.  432,  and  authorities  there  cited.  Also,  Sully  v. 
Am.  National  Bank,  178  U.  S.  289;  20  Sup.  Ct.  Rep.  935;  44  L.  ed. 
1072;  Waters-Pierce  Oil  Co.  v.  Texas,  177  U.  S.  28;  20  Sup.  Ct.  Rep. 
518;  44  L.  ed.  657;  W.  U.  Tel.  Co.  v.  Kansas,  216  U.  S/l;  30  Sup.  Ct. 
Rep.  190;  54  L.  ed.  355;  Pullman  Co.  v.  Kansas,  216  U.  S.  56;  30  Sup. 
Ct.  Rep.  232;  54  L.  ed.  56. 


CHAPTER  IX 

INTERSTATE    RELATIONS:   EXTRADITION 

Interstate  extradition 

The  Constitution  provides  that  "a  person  charged  in 
any  State  with  treason,  felony  or  other  crime,  who  shall 
flee  from  justice,  and  be  found  in  another  State,  shall  on 
demand  of  the  executive  authority  of  the  State  from  which 
he  has  fled,  be  delivered  up  to  be  removed  to  the  State 
having  jurisdiction  of  the  crime"  (Art.  IV,  §  2,  cl.  2). 

In  the  case  of  Kentucky  v.  Dennison,1  decided  by  the 
Supreme  Court  in  1860,  the  respective  powers  and  duties 
of  the  State  and  Federal  Governments  in  respect  of  the 
extradition  of  criminals  came  up  for  adjudication.  Con- 
gress had  passed  a  law  declaring  that,  upon  request  from 
the  State  from  which  the  fugitive  has  fled,  "it  shall  be 
the  duty  of  the  executive  authority  of  the  State"  to 
cause  the  fugitive  to  be  seized  and  delivered  to  the  agent 
of  the  demanding  State.  Dennison,  the  governor  of  Ohio, 
refused  the  request  of  the  Commonwealth  of  Kentucky 
to  surrender  a  fugitive  from  her  borders.  Thereupon 
a  mandamus  was  asked  from  the  Federal  court  to  compel 
him  to  do  so.  This  writ,  the  Supreme  Court  in  a  unan- 
imous opinion  refused  to  issue,  the  position  being  taken 
that  the  obligation  imposed  upon  the  governors  of  the 
State  by  the  extradition  clause  is  not  one  which  may  be 
enforced  by  Federal  authority. 

There  have  since  been  a  number  of  occasions  upon  which 


24  How.  66;  16  L.  ed.  717. 

87 


88  PRINCIPLES  OF  THE  CONSTITUTIONAL 

the  governor  of  one  State  has  refused  the  extradition  of 
a  person  found  within  its  borders  and  admittedly  come 
from  the  State  which  has  asked  for  his  return.  A  notable 
instance  was  the  refusal  of  the  governor  of  Indiana  to 
permit  the  extradition  of  ex-Governor  Taylor  of  Kentucky 
who  was  indicted  in  the  latter  State  as  having  been  a 
party  to  the  murder  of  Governor  Goebel. 

Extradition  by  the  States  of  the  Union  to  foreign  States 

In  1840  the  Supreme  Court  was  called  upon  to  pass 
upon  the  question  whether  it  lies  within  the  constitutional 
power  of  the  individual  States  of  the  Union  to  surrender 
fugitives  from  justice  to  a  foreign  government.2  This 
point  the  court  found  so  difficult  to  decide,  that,  after 
holding  it  under  advisement  for  a  long  time,  it  divided 
•equally  and  was,  therefore,  unable  to  render  an  opinion 
.as  the  opinion  of  the  court,  though,  according  to  its  prac- 
tice in  such  cases,  it  affirmed  the  decision  of  the  court 
below.  Taney  in  his  individual  opinion  took  the  ground 
that  the  surrender  of  fugitives  from  justice  is  a  matter 
that  properly  falls  within  the  general  field  of  international 
relations,  and  that  the  control  of  this  field  being  exclu- 
sively vested  in  the  Federal  Government,  the  States  are 
.absolutely  excluded  therefrom,  and,  therefore,  cannot, 
constitutionally,  exercise  the  right  of  extraditing  to  for- 
eign countries  fugitives  from  such  countries  to  their  own 
territories. 

It  would  seem  that  the  law  on  this  point  remained  in 
-this  unsettled  state  until  1886  when,  in  the  case  of  United 
States  v.  Rauscher  3  the  Supreme  Court  declared,  without 
dissent,  that  "  there  can  be  little  doubt  of  the  soundness 
of  the  opinion  of  Chief  Justice  Taney,  that  the  power 


2  Holmes  v.  Jennison,  14  Pet.  540;  10  L.  ed.  579. 
3 119  U.  S.  407;  7  Sup.  Ct.  Rep.  234;  30  L.  ed.  425. 


LAW  OF  THE  UNITED  STATES  89 

exercised  by  the  governor  of  Vermont  is  a  part  of  the 
foreign  intercourse  of  this  country  which  has  undoubtedly 
been  conferred  upon  the  Federal  Government;  and  that 
it  is  clearly  included  in  the  treaty-making  power  and  the 
corresponding  power  of  appointing  and  receiving  ambas- 
sadors and  other  public  ministers." 

A  number  of  decisions  have  held  that  the  asylum 
State  may  satisfy  the  demands  of  its  own  laws  before 
surrendering  a  fugitive  to  the  State  from  which  he  has 
fled.4 

Auxiliary  legislation  by  the  States 

The  power  of  Congress  by  legislation  to  render  effective 
the  extradition  clause  is  not  exclusive,  and  does  not,  there- 
fore, exclude  the  power  of  the  State  to  enact  measures 
auxiliary  thereto.  Indeed,  such  additional  legislation  is, 
in  general,  necessary,  as,  for  example,  laws  for  inquiring 
into  the  fact  whether  the  person  demanded  was  actually, 
and  not  constructively,  within  the  State  claiming  him, 
when  the  offense  charged  was  committed.5 

Judicial  examination  of  extradition  proceedings 

"Upon  the  executive  of  the  State  rests  the  responsibility 
of  determining,  in  some  legal  mode,  whether  [the  one 
claimed]  is  a  fugitive  of  the  demanding  State.  He  does 
not  fail  in  duty  if  he  makes  it  a  condition  precedent  to 
the  surrender  of  the  accused  that  it  be  shown  to  him,  by 
competent  proof,  that  the  accused  is,  in  fact,  a  fugitive 
from  the  justice  of  the  demanding  State."  6 


4  Taylor  v.  Taintor,  16  Wall.  366;  21  L.  ed.  287. 

5  Ex  parte  McKean,  3  Hughes,  23.  See  also  3  Fed.  Stat.  Annotated, 
79,  note. 

6  Ex  parte  Reggel,  114  U.  S.  642;  5  Sup.  Ct.  Rep.  1148;  29  L.  ed. 
250.    Independent  proof,  apart  from  the  requisition  papers  that  the 
accused  is  a  fugitive  from  justice  need  not,  however,  be  demanded 


90  PRINCIPLES  OF  THE  CONSTITUTIONAL 

The  governor  cannot  be  compelled  by  judicial  process, 
State  or  Federal,  to  take  action,  but  where  he  has  acted, 
his  action  may  be  reviewed  by  the  courts.7 

It  has  been  decided  that  where  a  fugitive  has  been 
forcibly  abducted,  without  being  extradited,  from  a  State 
to  which  he  had  come  to  the  State  from  which  he  had  fled, 
neither  the  Federal  Government,  nor  the  State  whose 
peace  has  thus  been  violated,  nor  the  abducted  one,  has 
legal  redress,  unless,  indeed,  the  governor  of  the  State 
to  which  he  has  been  taken  is  willing  to  return  him,  and 
to  extradite  the  persons  participating  in  the  abduction.8 

It  has  also  been  held  that  no  Federal  right  of  the 
fugitive  has  been  violated  when  he  has  been  removed 
to  the  demanding  State  without  an  opportunity  being 
given  to  test  in  the  courts  of  the  surrendering  State  the 
legality  of  the  extradition.9 

Trial  of  offenses  other  than  those  for  which  extradited 

In  United  States  v.  Rauscher  was  considered  the  ques- 
tion whether  a  fugitive  extradited  from  a  foreign  country 
in  pursuance  of  a  treaty  between  that  country  and  the 
United  States  covering  the  crime  charged,  could,  after 
coming  into  the  custody  of  the  United  States,  be  tried 
upon  another  minor  offense  not  covered  by  the  treaty. 
The  court  held  that  he  could  not  be. 

In  Lascelles  v.  Georgia,10  however,  it  was  held  that, 


by  the  governor  upon  whom  the  request  for  surrender  is  made. 
Pettibone  v.  Nichols,  203  U.  S.  192;  27  Sup.  Ct.  Rep.  Ill;  51  L.  ed. 
148. 

7  Roberts  v.  Reffly,  116  U.  S.  80;  6  Sup.  Ct.  Rep.  291;  29  L.  ed.  544. 

8  Mahon  v.  Justice,  127  U.  S.  700;  8  Sup.  Ct.  Rep.  1204;  32  L.  ed. 
283. 

9  Pettibone  v.  Nichols,  203  U.  S.  192;  27  Sup.  Ct.  Rep.  Ill;  51  L. 
ed.  148. 

10 148  U.  S.  537;  13  Sup.  Ct.  Rep.  687;  37  L.  ed.  549.    See  also  the 
authorities  cited  in  this  case. 


LAW  OF  THE  UNITED  STATES  91 

as  to  fugitives  from  one  State  of  the  Union  to  another, 
this  may  be  done. 

Who  is  a  "  fugitive  " 

"To  be  a  fugitive  from  justice  ...  it  is  not  neces- 
sary that  the  party  charged  should  have  left  the  State 
in  which  the  crime  is  alleged  to  have  been  committed, 
after  an  indictment  found,  or  for  the  purpose  of  avoiding 
a  prosecution  anticipated  or  begun,  but  simply  that, 
having  within  a  State  committed  that  which  by  its  laws 
constitutes  a  crime,  when  he  is  sought  to  be  subjected  to 
its  criminal  process  to  answer  for  his  offense,  he  has  left 
its  jurisdiction  and  is  found  to  be  within  the  territory 
of  another."  u 

In  Hyatt  v.  New  York,12  it  was  definitely  held,  without 
qualification,  that  in  order  to  be  a  "fugitive  from  justice" 
within  the  meaning  of  the  constitutional  clause,  and  of 
the  statutes  relating  thereto,  the  person  sought  to  be 
extradited  must  have  been  actually,  and  not  merely  con- 
structively, within  the  demanding  State  at  the  time  the 
crime  charged  was  committed.  Furthermore,  in  this  case 
it  was  held  that  one  who  came  into  the  State  on  business 
for  a  single  day  eight  days  after  the  alleged  commission 
of  the  crime,  and  months  before  indictment  found,  was 
not,  by  his  departure  therefrom,  brought  within  the 
terms  of  the  statute  providing  for  extradition. 

Fugitive  slaves 

This  clause  is  practically  obsolete.  An  elaborate  ex- 
amination of  the  obligations  imposed  upon  the  States, 
and  of  the  extent  of  their  concurrent  legislative  power  in 
the  premises  is  found  in  Prigg  v.  Pennsylvania.13 

11  Roberts  v.  Reilly,  116  U.  S.  80;  6  Sup.  Ct.  Rep.  291;  29  L.  ed. 
544.  See  also  Appleyard  v.  Massachusetts,  203  U.  S.  222;  27  Sup.  Ct. 
Rep.  122;  51  L.  ed.  161. 

12 188  U.  S.  691;  23  Sup.  Ct.  Rep.  456;  47  L.  ed.  657. 

13 16  Pet.  539;  10  L.  ed.  1060. 


CHAPTER  X 

INTERSTATE  RELATIONS!  COMPACTS  BETWEEN  THE  STATES, 
AND    BETWEEN  THE  UNITED    STATES  AND  THE  STATES 

Compacts  between  the  States 

The  control  of  international  relations  being  exclusively 
vested  in  the  Federal  Government,  it  necessarily  follows 
that  the  several  States  have  no  authority  to  enter  into 
any  diplomatic  or  political  relations  with  foreign  powers. 
Nevertheless,  from  an  excess  of  caution,  the  Federal  Con- 
stitution declares  that  "No  State  shall  enter  into  any 
treaty,  alliance,  or  confederation,"  and  that,  "No  State 
shall,  without  the  consent  of  Congress,  .  .  .  enter  into 
any  agreement  or  compact  with  another  State,  or  with  a 
foreign  power." 

It  will  be  noticed  that  in  the  latter  of  these  two  con- 
stitutional clauses,  the  qualification  "without  the  consent 
of  Congress"  is  introduced.  There  has,  therefore,  never 
been  any  doubt  that,  when  this  congressional  consent 
is  given,  the  several  States  of  the  American  Union  may 
enter  into  agreements  and  compacts  with  one  .another, 
so  long  as  their  effect  is  not  to  create  what  in  political 
language  is  termed  an  "alliance"  or  "Confederation." 
Not  only  this;  it  has  been  held  that  there  are  a  variety 
of  subjects  concerning  which  the  several  States  may  enter 
into  agreements  with  one  another  without  obtaining  the 
consent  of  Congress.1 


1  See  the  language  of  the  court  in  Virginia  v.  Tennessee,  148  U.  S. 
503;  13  Sup.  Ct.  Rep.  728;  37  L.  ed.  537. 
92 


LAW  OF  THE  UNITED  STATES  93- 

Compact  between  the  States  and  the  United  States 

Closely  connected  with  the  subject  of  compacts  of  the 
States,  inter  se,  is  that  of  compacts  between  the  individual 
States  and  the  United  States. 

Of  compacts  of  this  character  which  have  been  entered 
into,  the  greater  number  have  been  made  at  the  time  the 
States  in  question  have  been  admitted  as  States  into  the 
Union,  and  have  attempted  to  place  such  States  under 
restrictions  not  directly  deducible  from  the  Federal  Con- 
stitution, and  therefore,  restrictions  not  resting  upon  the 
other  States.  To  this  extent  they  have  been  in  viola- 
tion of  the  general  principle  of  the  equality  of  the  States. 
\This  principle,  it  may  be  said,  is  not  expressly  stated  in 
the  Federal  Constitution,  but  would  seem  to  be  implied 
in  the  general  nature  of  that  instrument.^ 

The  Constitution,  without  distinguishing  between  the 
original  and  new  States,  defines  the  political  privileges 
which  the  States  are  to  enjoy,  and  declares  that  all  powers 
not  granted  to  the  United  States  shall  be  considered  as' 
reserved  "to  the  States."  From  this  it  almost  irresistibly 
follows  that  Congress  has  not  the  right  to  provide  that 
certain  members  of  the  Union,  possessing  full  statehood, 
shall  have  constitutional  competences  less  than  those  of 
their  sister  States.  According  to  this,  then,  though  Con- 
gress may  exact  of  Territories  whatever  conditions  it  sees 
fit  as  requirements  precedent  to  their  admission  as  States, 
when  admitted  as  such,  it  cannot  deny  to  them  any  of  the 
privileges  and  immunities  which  the  other  commonwealths 
enjoy. 

It  would  seem,  as  regards  the  enforcibility  of  these 
contracts,  that  a  distinction  is  to  be  made  between  those 
that  attempt  to  place  the  State  under  political  restrictions 
not  imposed  upon  all  the  States  of  the  Union  by  the  Fed- 

.*  See  Political  Science  Quarterly,  III,  425,  article  by  W.  A.  Dunning, 
"Are  the  States  Equal  Under  the  Constitution?" 


94  PRINCIPLES  OF  CONSTITUTIONAL  LAW 

eral  Constitution,  and  those  which  seek  the  future  regula- 
tion of  private,  proprietary  interests,  and  that  these  lat- 
ter, though  not  the  former,  may  be  enforced  after  the 
States  have  been  admitted  into  the  Union.3 


3  Escanaba  v.  Lake  Michigan  Transportation  Co.,  107  U.  S.  678; 
2  Sup.  Ct.  Rep.  185;  27  L.  ed.  442;  Boln  v.  Nebraska,  176  U.  S.  83; 
20  Sup.  Ct.  Rep.  287;  44  L.  ed.  382;  Stearns  v.  Minnesota,  179  U.  S. 
223;  21  Sup.  Ct.  Rep.  73;  45  L.  ed.  162. 


CHAPTER  XI 

THE  PERSONS  SUBJECT  TO  THE  JURISDICTION  OF  THE  UNITED 
STATES:  STATUS  OF  ALIENS 

Territorial  sovereignty 

By  international  law  and  by  the  public  law  of  all  civ- 
ilized States  the  legal  jurisdiction  of  a  State  is  recognized 
to  extend  over  all  persons  for  the  time  being  within  the 
districts  under  its  de  facto  control.  The  only  exceptions, 
if  exceptions  they  be,  are  those  coming  within  the  princi- 
ple of  extraterritoriality.  A  State  has  jurisdiction  over 
not  only  its  native-born  and  naturalized  subjects,  but  all 
the  subjects  of  other  States  permanently  or,  at  any  given 
time,  temporarily  resident,  within  its  borders.1 

Status  of  aliens 

As  regards  the  status  of  aliens,  that  is,  citizens  of  other 
States,  who  are  temporarily  or  permanently  domiciled 
within  a  State,  it  may  be  said  that  the  fact  that  they  are 
within  its  territorial  limits  makes  them,  in  a  broad  consti- 
tutional sense,  members  of  that  State  and,  therefore,  sub- 
ject to  the  authority  of  its  laws,  though  they  still  remain 
the  subjects  or  citizens  of  their  native  States.  In  fact, 
being  under  the  protection  of  the  State  where  they  are, 
they  owe  an  allegiance  to  it  according  to  the  maxim  pro- 
tectio  trahit  subjectionem,  et  subjectio  protectionem.2 

1  For  a  general  discussion  of  the  principle  of  territorial  sovereignty, 
see  the  case  of  The  Exchange,  7  Cr.  116;  3  L.  ed.  287.    For  the  effects 
of  de  facto  control,  see  United  States  v.  Rice,  4  Wh.  246;  4  L.  ed.  562. 

2  Cf.  Webster's  report  on  Thrasher's  Case,  Works,  VI,  526.    See, 

95  * 


96  PRINCIPLES  OF  THE  CONSTITUTIONAL 

It  has  been  shown  that  a  State  has  absolute  legal  author- 
ity over  all  persons  within  its  territorial  jurisdiction,  and 
over  its  own  citizens  wherever  they  may  be.  In  the  ex- 
ercise, however,  of  this  authority  over  persons  within 
its  territorial  limits  who  are  claimed  as  citizens  by  other 
States,  that  is,  over  resident  aliens,  or  naturalized  citizens 
whose  native  States  do  not  recognize  the  right  of  ex- 
patriation, this  legal  power,  though  not  subject  to  legal 
limitation,  is  actually  subject  to  certain  limitations  which 
international  custom  has  created.  Thus  each  State  de- 
mands that  its  citizens  when  abroad,  shall  receive  pro- 
tection of  life  and  property,  and  that  they  be  not  un- 
duly discriminated  against  by  the  foreign  State  in  which 
they  may  happen  to  be.  Also,  States  do  not  permit 
the  foreign  States  to  require  from  their  subjects  the  per- 
formance of  duties,  as,  for  example,  service  in  its  army, 
that  may  properly  be  required  only  of  citizens.  Resident 
aliens  may  indeed  be  required  to  lend  their  assistance, 
by  service  in  the  militia  and  police  forces,  or  in  a  posse 
comitatus,  to  put  down  domestic  disorder;  for,  enjoying 
the  protection  of  the  local  law,  they  may  fairly  be  required 
to  aid  in  overcoming  resistance  to  its  enforcement.  But 
they  may  not  be  compelled  to  serve  in  the  national  mili- 
tary forces  in  cases  of  public  war. 

A  distinction  is  made  in  practically  all  countries  be- 
tween domiciled  and  non-domiciled  aliens,  with  reference 
to  the  legal  burdens  that  may  be  imposed  upon  them 
and  the  civil  and  political  rights  that  they  may  enjoy. 

An  alien  becomes  domiciled  in  a  particular  place  when 
he  takes  up  his  residence  there  with  an  intention  to  remain 
for  an  indefinite  length  of  time  (animo  manendi).  When 
so  domiciled,  all  matters  other  than  political,  which  re- 

also,  United  States  v.  Carlisle,  16  Wall.  147;  21  L.  ed.  426;  United 
States  v.  Wong  Kim  Ark,  169  U.  S.  649;  18  Sup.  Ct.  Rep.  456;  42 
L.  ed.  890. 


LAW  OF  THE  UNITED  STATES  97 

late  to  his  personal  status,  are  regulated  by  the  lex  domi- 
cilii.  Thus  the  local  law  governs  his  power  to  enter  into 
contracts,  regulates  succession  to  personal  property,  and 
the  validity  of  wills  with  reference  thereto,  and,  in  the 
United  States,  England,  and  many  of  her  dependencies, 
determines  the  validity  of  marriages. 

Domicile  is  immediately  fixed  when  residence  is  taken 
up  with  the  intent  to  remain  for  an  indefinite  time.3 

An  alien  passing  through  the  United  States,  or  for  any 
purpose  only  temporarily  in  the  country,  is  held  fully  sub- 
ject to  local  criminal  law.  He  is  also  able  to  enter  into  civil 
contracts  which  may  be  enforced  against  him  to  the  extent 
of  any  property  that  he  may  have  within  the  United  States. 

Exclusion  and  expulsion  of  aliens 

All  countries  have,  according  to  the  principles  of  inter- 
national law,  the  right  to  determine  for  themselves  whether 
or  not  they  will  admit  aliens  within  their  borders,  or 
whether  they  will  admit  some  and  exclude  others.  Fur- 
thermore, after  admission,  aliens,  whether  domiciled  or 
not,  may  remain  only  so  long  as  the  State  where  they  are 
may  see  fit  to  permit  them  to  do  so.  The  arbitrary, 
oppressive,  or  opprobrious  exercise  of  these  rights  may 
give  rise  to  just  ground  of  complaint  upon  the  part  of  the 
States  whose  subjects  are  thereby  injured  or  discriminated 
against.  But  the  existence'of  the  right  of  an  independent 
State  to  determine  for  itself  whom  it  will  receive  or  allow 
to  remain  within  its  borders,  cannot  be  questioned. 

The  right  of  the  United  States,  from  both  the  inter- 
national and  constitutional  points  of  view,  to  prohibit  en- 
trance within  its  borders  of  such  aliens  as  it  may  deem 
undesirable  additions  to  its  population,  has  been  examined 
and  upheld  in  numerous  cases,  most  of  them  dealing  with 
the  exclusion  of  the  Chinese.4 

3  The  Venus,  8  Cr.  253;  3  L.  ed.  553. 

4  Chae  Chan  Ping  v.  United  States,  130  U.  S.  581;  9  Sup.  Ct.  Rep. 

7 


98  PRINCIPLES  OF  CONSTITUTIONAL  LAW 

Protection  of  the  persons  and  property  of  aliens 

Aliens  are,  by  the  general  doctrines  of  public  law,  en- 
titled to  the  same  protection  of  persons  and  property 
that  is  enjoyed  by  the  citizens  of  the  State  in  which  they 
are  resident.  In  all  cases,  when  injured,  the  same  means 
of  redress  that  are  open  to  citizens  must  be  given  to  them. 
But  they  are,  of  international  right,  entitled  to  no  special 
privileges  in  these  respects.5 

623;  32  L.  ed.  1068.  That  this  power  of  exclusion  may  be  exercised 
through  administrative  officers  without  judicial  intervention,  see 
Chapter  LIV  of  this  treatise.  The  leading  cases  are:  Ekiu  v.  United 
States,  142  U.  S.  651;  12  Sup.  Ct.  Rep.  336;  35  L.  ed.  1146;  Fong 
Yue  Ting  v.  United  States,  149  U.  S.  698;  13  Sup.  Ct.  Rep.  1016;  37 
L.  ed.  905;  Lem  Moon  Sing  v.  United  States,  158  U.  S.  538;  15  Sup. 
Ct.  Rep.  967;  39  L.  ed.  1082;  Turner  v.  Williams,  194  U.  S.  279;  24 
Sup.  Ct.  Rep.  719;  48  L.  ed.  979;  United  States  v.  Ju  Toy,  198  U.  S. 
253;  25  Sup.  Ct.  Rep.  644;  49  L.  ed.  1040;  Chin  Low  v.  United  States, 
208  U.  S.  8;  28  Sup.  Ct.  Rep.  201;  52  L.  ed.  369. 

5  See  Moore,  Digest  of  International  Law,  IV,  534,  and  authorities 
there  cited.  For  a  discussion  of  the  constitutional  and  international 
questions  arising  out  of  injuries  to  resident  aliens,  see  the  author's 
larger  treatise,  §  126,  and  also  the  monograph  by  J.  I.  Chamberlain, 
The  Position  of  the  Federal  Government  of  the  United  States  in  Regard 
to  Crimes  Committed  Against  Subjects  of  a  Foreign  Nation  Within  the 
States. 


CHAPTER  XII 

AMERICAN   CITIZENSHIP 

Citizenship  defined 

The  citizen  or  subject  body  of  a  State,  regarded  from 
the  point  of  view  of  other  States,  that  is,  from  the  point 
of  view  of  international  law,  constitutes  one  homogeneous 
body,  all  the  members  of  which  have  the  same  status,  the 
same  rights  and  duties.  Considered,  however,  from  the 
point  of  view  of  the  constitutional  or  municipal  law  of  the 
State  in  question,  they  may  be  grouped  into  distinct 
classes,  with  differing  public  and  private  rights.  Thus 
it  is  that  in  the  constitutional  jurisprudence  of  the 
United  States  are  to  be  found  at  present  not  only  a  dis- 
tinction between  Federal  and  State  citizenship,  but,  within 
the  class  of  Federal  citizenship  (as  including  all  those  per- 
sons subject  to  the  full  sovereignty  of  the  United  States) 
a  distinction  between  those  who  are  " citizens  of  the  United 
States"  according  to  the  meaning  of  the  phrase  as  used 
in  the  Constitution  of  the  United  States,  and  those,  who, 
though  subjects  of  the  'United  States,  are  not  citizens 
within  this  narrower  constitutional  sense.1 

State  and  Federal  citizenship  distinguished 

As  adopted,  the  Federal  Constitution  contained  no 
definition  of  citizenship.  Impliedly,  however,  it  recog- 

1  In  the  opinions  rendered  in  the  case  of  Minor  v.  Happersett,  21 
Wall.  162;  22  L.  ed.  627,  is  to  be  found  a  general  discussion  of  the 
subject  of  citizenship.  See  also  a  valuable  congressional  report  on 
citizenship,  H.  R.  Doc.  326,  59th  Cong.,  2d  Session. 

99 


100  PRINCIPLES  OF  THE  CONSTITUTIONAL 

nized  a  State  citizenship  in  that  clause  which  provides 
that  "citizens  of  each  State  shall  be  entitled  to  all  the 
privileges  and  immunities  of  citizens  in  the  several  States." 
It  would  also  seem  to  have  recognized  a  Federal  citizen- 
ship in  the  clauses  providing  that  the  President  shall  be 
"a  natural  born  citizen,  or  a  citizen  of  the  United  States 
at  the  time  of  the  adoption  of  the  Constitution";  that 
Senators  and  Representatives  shall  have  been  nine  and 
seven  years  respectively  citizens  "of  the  United  States"; 
and  that  Congress  shall  have  the  power  to  pass  laws  reg- 
ulating the  naturalization  of  aliens. 

There  has  never  been  any  question  as  to  the  existence 
under  the  Constitution  of  a  distinction  between  State  and 
Federal  citizenship.  The  only  dispute  has  been  as  to  the 
relationship  of  the  two.  Prior  to  the  argument  of  the 
Dred  Scott  case  2  there  was  surprisingly  little  discussion 
of  this  point.  The  opinion  generally  held  seems,  however, 
to  have  been  that  every  citizen  of  a  State  was  a  citizen 
of  the  United  States. 

In  effect,  the  Dred  Scott  decision  held  that  native-born 
negroes,  whether  free  or  slave,  living  in  the  United  States, 
though  subjects  of,  that  is,  owing  allegiance  to,  the  United 
States,  were  not,  and  could  not  by  either  State  or  Federal 
action,  be  made  "citizens"  of  the  United  States  within 
the  meaning  of  the  Constitution. 

The  Fourteenth  Amendment 

In  1868  was  adopted  the  Fourteenth  Amendment  which 
provides  that  "All  persons  born  or  naturalized  in  the 
United  States,  and  subject  to  the  jurisdiction  thereof, 
are  citizens  of  the  United  States  and  of  the  State  wherein 
they  reside." 

The  two  main  purposes  of  this  declaration  undoubtedly 


Scott  v.  Sandford,  19  How.  393;  15  L.  ed.  691. 


LAW  OF  THE  UNITED  STATES  101 

were:  (1)  The  assertion  that  national  >  citizenship  is  prij 
mary  and  paramount  to  State  citizenship,  and  (2),  the 
granting  of  both  national  and  State  citizenship  to  the  ne- 
gro. That  national  citizenship  was  to  be  paramount  was 
shown  not  only  in  the  words  just  quoted,  but  in  the  fur- 
ther pro  vision  of  the  amendment  that  "no  State  shall  make 
or  enforce  any  law  which  shall  abridge  the  privileges  and 
immunities  of  citizens  of  the  United  States,  nor  shall  any 
State  deprive  any  person  of  life,  liberty  or  property  with- 
out due  process  of  law;  nor  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws." 

In  the  Slaughter  House  Cases,3  as  we  have  already 
learned,  the  Supreme  Court  held,  in  effect,  that  this  amend- 
ment did  not  have  the  effect  of  absorbing  State  citizen- 
ship and  its  appurtenant  rights  into  the  national  citizen- 
ship, but  that  the  two  remain  as  distinct  as  before.  Upon 
this  point  the  court  declare  that  the  clause  defining  citizen- 
ship provides  that  "persons  may  be  citizens  of  the  United 
States  without  regard  to  the  citizenship  of  a  particular 
State,  and  it  overturns  the  Dred  Scott  decision  by  making 
all  persons  born  within  the  United  States  and  subject  to 
its  jurisdiction  citizens  of  the  United  States." 

Since  the  adoption  of  the  Fourteenth  Amendment  there 
has  been  no  question  that  all  persons  (including  ne- 
groes) born  or  naturalized  in  the  United  States  become 
by  mere  residence  in  a  State  citizens  of  the  State.  Fur- 
thermore there  is,  and  has  been,  no  question  that,  as 
Taney  says  in  his  opinion  in  the  Dred  Scott  case,  a  State 
cannot,  by  granting  its  citizenship  to  an  alien,  give  him 
Federal  citizenship  or  endow  him  with  any  of  the  privileges 
appertaining  to  that  status,  for  the  right  of  naturaliza- 
tion is,  as  will  be  seen,  vested  exclusively  in  the  Federal 
Government. 


3 16  Wall.  36;  21  L.  ed.  394. 


102  PniNCIFDES    OF    THE    CONSTITUTIONAL 

-  Inhabitants  of  the* District  of  Columbia  and  of  a  Terri- 
tory are  not  citizens  of  a  State  within  the  meaning  of  the 
Constitution.  They  are,  however,  of  course,  citizens  of 
the  United  States.4 

Wong  Kim  Ark  case 

In  the  case  of  United  States  v.  Wong  Kim  Ark,5  de- 
cided in  1898,  the  Supreme  Court  was  called  upon  to  deter- 
mine whether,  under  the  terms  of  the  Fourteenth  Amend- 
ment, persons  born  in  the  United  States  of  alien  parents, 
are  citizens  of  the  United  States.  In  this  case  the  question 
was  as  to  the  citizenship  of  a  child  of  Chinese  parents  who 
not  only  were  not  citizens  of  the  United  States,  but  could 
not,  under  the  existing  laws,  become  such  by  naturaliza- 
tion. In  sustaining  Ark's  citizenship  the  court  held  that 
the  clause  of  the  Amendment  declaring  that  "all  persons 
born  or  naturalized  in  the  United  States,  and  subject  to 
the  jurisdiction  thereof,  are  citizens  of  the  United  States," 
is  but  declaratory  of  the  common-law  principle  unreserv- 
edly accepted  in  England  since  Calvin's  case  (the  case  of 
Postnati,  decided  in  1608)  and  in  the  United  States  since 
the  Declaration  of  Independence,  that  all  persons,  irre- 
spective of  the  nationality  of  their  parents,  born  within 
the  territorial  limits  of  a  State,  are,  ipso  facto,  citizens  of 
that  State.  The  court  admitted  that  the  principle  of 
the  Roman  law  according  to  which  the  citizenship  follows 
that  of  the  parent,  irrespective  of  the  place  of  birth,  has 
been  accepted  by  certain  of  the  European  nations,  but 
denied  that  this  principle  had  become  a  true  and  universal 
rule  of  international  law,  or,  if  it  had,  that  it  had  super- 
seded the  rule  of  the  common  law. 


4  Hepburn  v.  Ellzey,  2  Cr.  445;  2  L.  ed.  332;  American  Insurance 
Co.  v.  Canter,  1  Pet.  511;  7  L.  ed.  242. 

5 169  U.  S.  649;  18  Sup.  Ct.  Rep.  456;  42  L.  ed.  890. 


LAW  OF  THE  UNITED  STATES  103 

The  acceptance  of  the  foregoing  doctrine,  it  was  held, 
does  not  prevent  the  United  States  from  providing  that 
children  born  abroad  of  American  citizens  shall  be  con- 
sidered citizens  of  the  United  States. 


CHAPTER  XIII 

NATURALIZATION  I    EXPATRIATION 

Naturalization  by  statute 

Each  country  determines,  by  its  own  municipal  law, 
the  persons  to  be  admitted  to  its  citizenship. 

Since  the  adoption  of  the  Constitution,  it  has  been 
recognized  that  citizenship  of  the  United  States  may  be 
obtained  in  two  ways — by  birth  within  the  country,  and 
by  naturalization.  As  has  been  already  learned,  up  to 
the  time  of  the  Dred  Scott  decision  there  was  doubt 
whether  birth  within  the  United  States  or  naturalization 
by  the  General  Government  was  sufficient  to  endow  one 
with  either  Federal  or  State  citizenship.  By  that  decision 
this  doubt  was  resolved  in  the  negative,  it  being  held 
that  no  one  by  mere  birth  becomes  a  citizen  of  the  United 
States,  and  that  one  could  become  a  Federal  citizen  only 
by  becoming  first  a  citizen  of  a^  State,  though  it  was  also 
held,  it  will  be  remembered,  that  a  State  could  not,  by 
making  an  African  negro  one  of  its  own  citizens,  thereby 
endow  him  with  the  general  constitutional  privileges  of 
Federal  citizenship.  By  the  Fourteenth  Amendment, 
however,  it  was  declared  that  national  citizenship  is  no 
longer  dependent  upon  State  citizenship,  and  that  mere 
birth  within  the  United  States,  even  though  of  alien  par- 
ents, or  naturalization  by  Federal  law,  is  sufficient  to 
create  national  citizenship;  and  that  residence  in  a  State 
is  sufficient  to  render  one  a  citizen  of  that  State. 

It  lies  within  the  legislative  discretion  of  Congress  to 
determine  the  mode  of  naturalization,  the  conditions  upon 
which  it  will  be  granted,  and  the  persons  and  classes  of 
104 


LAW  OF  THE  UNITED  STATES  105 

persons  to  whom  the  right  will  be  extended;  but,  as 
was  said  in  the  Wong  Kim  Ark  case,  not  to  restrict  the 
civil  and  political  rights  of  naturalized  citizens  beyond 
the  limits  provided  in  the  Constitution. 

Except  as  limited  by  the  Constitution  it  is  within  the 
power  of  Congress  to  determine  the  civil  and  political 
rights  which  naturalized  citizens  shall  enjoy,  and  to  make 
these  rights  less  than  those  possessed  by  native-born  sub- 
jects. The  due  process  of  law  clause  of  the  Fifth  Amend- 
ment, however,  would  prevent  any  very  great  discrimina- 
tion as  to  their  civil  rights,  and  this  limitation  is  reinforced 
by  the  obligations  of  international  comity.  The  Consti- 
tution itself  provides  that  only  a  native-born  citizen  shall 
be  eligible  to  the  Presidency  or  Vice  Presidency. 

In  the  United  States  the  granting  of  naturalization  is 
held  to  be  a  judicial  act.1 

Congress  by  statute  determines  the  courts  which  shall 
exercise  the  right  to  naturalize,  and  to  such  courts  the 
function  is  exclusively  confined.  Congress  may  authorize, 
and  for  many  years  has  authorized,  State  courts  to  enter- 
tain naturalization  proceedings,  but  there  is,  of  course, 
no  power  on  the  part  of  the  Federal  Government  to  compel 
the  exercise  by  such  State  courts  of  the  power  so  granted. 

It  has  been  held  that  naturalization  has  a  retroactive 
effect  to  the  extent  of  removing  liability  to  forfeiture  of 
lands  held  during  alienage.2 

The  naturalization  of  a  father  operates  as  a  naturaliza- 
tion of  his  minor  children  if  they  are  dwelling  within  the 
United  States.3  In  the  same  case  in  which  this  is  held, 
it  is  also  held  that  the  declaration  by  a  father  of  an  inten- 


1  Spratt  v.  Spratt,  4  Pet.  393;  7  L.  ed.  897. 

2  Manuel  v.  Wulff,  152  U.  S.  505;  14  Sup.  Ct.  Rep.  651;  38  L.  ed. 
532. 

3  Boyd  v.  Nebraska,  143  U.  S.  135;  12  Sup.  Ct.  Rep.  375;  36  L.  ed. 
103. 


106  PRINCIPLES  OF  THE  CONSTITUTIONAL 

tion  to  become  naturalized  gives  to  his  children  who 
attain  their  majority,  before  their  father's  naturalization 
is  completed,  an  inchoate  citizenship  which,  however, 
upon  majority,  may  be  repudiated. 

When  territories  are  annexed  either  by  treaty  or  by 
conquest,  the  status  of  the  inhabitants  is  determined  at 
the  will  of  the  annexing  States.  In  all  cases,  however,  in 
the  absence  of  any  treaty  stipulations  to  the  contrary, 
the  annexation  of  a  territory  transfers  to  the  annexing 
State  the  allegiance  of  its  inhabitants,  and  makes  them, 
from  the  point  of  view  of  other  nations,  the  citizens  of 
that  State.  Whether  or  not,  however,  they  become  its 
citizens  in  the  strictest  constitutional  sense  depends  upon 
the  municipal  will  of  that  country.  This  branch  of  the 
subject  will  be  treated  in  the  chapter  dealing  with  "  Citi- 
zenship in  the  Territories  and  Dependencies." 

Besides  naturalization  by  general  acts,  by  treaty,  and 
by  conquest,  there  have  been  many  instances  in  the 
United  States  of  naturalization  of  specific  individuals  or 
groups  of  individuals  by  special  acts  of  Congress.4 

By  statute  it  is  provided  that  "all  children  heretofore 
born  out  of  the  limits  and  jurisdiction  of  the  United 
States,  whose  fathers  were  or  may  be  at  the  time  of  their 
birth  citizens  thereof,  are  declared  to  be  citizens  of  the 
United  States;  but  the  right  of  citizenship  shall  not  de- 
scend to  children  whose  fathers  never  resided  in  the 
United  States."  5  The  application  of  this  principle  to 
persons  born  in  countries  which,  like  the  United  States, 
claim  as  their  own  citizens  all  persons  born  within  their 
limits,  is  to  create  a  double  citizenship.  This  is  true, 
especially,  of  course,  with  reference  to  England. 

Double  citizenship  is  also  created  in  those  cases  in 


4  See  Van  Dyne,  Citizenship  of  the  United  States,  Chapter  VI. 
6  Rev.  Stat.,  §  1993. 


LAW  OF  THE  UNITED  STATES  107 

which  one  country  naturalizes  citizens  of  another  country 
which  does  not  admit  the  right  of  the  individual  to  ex- 
patriate himself  without  the  consent  of  the  State  of  his 
natural  allegiance. 

The  difficulties  and  conflicting  claims  arising  out  of 
these  cases  of  double  allegiance  have  been  numerous, 
and  have  usually  been  settled,  each  case  upon  its  own 
merits,  by  way  of  compromise  and  upon  doctrines  of 
comity,  rather  than  by  the  establishment  of  any  very 
general  principles.  Thus  it  has  been  held  upon  numerous 
occasions  by  the  executive  branch  of  our  government 
that  our  law  cannot  operate  to  relieve  such  persons  from 
their  allegiance  to  the  countries  in  which  they  are  born 
so  long  as  they  remain  in  such  countries.  It  has  also  been 
generally  held  that  where  a  naturalized  American  citizen 
returns  to  his  native  country,  he  may  be  held  bound  by 
such  obligations,  as,  for  example,  the  rendition  of  military 
service,  as  may  have  been  due  by  him  at  the  time  of  his 
departure  from  his  native  country.6 

Expatriation 

Until  comparatively  recent  times,  except  in  the  United 
States,  the  right  of  a  citizen  to  cast  off  his  natural  alle- 
giance, the  allegiance  into  which  he  is  born,  was  generally 
denied  by  the  States  of  the  world.  This  denial  was  made, 
but  not  always  enforced  in  practice,  in  England  down  to 
the  time  of  her  Naturalization  Act  of  1870. 

Since  the  first  years  of  the  Constitution  the  legislation 
of  Congress  upon  the  subject  of  naturalization  has  im- 
plied the  right  of  expatriation.  By  the  act  of  1868  which 
is  still  in  force,  the  right  of  expatriation  was  explicitly 
declared  in  the  most  unqualified  manner.7 

6  C/.  W.  S.  Tingle,  Germany's  Claims  Upon  German-Americans  in 
Germany,  Philadelphia,  1903. 

7  Rev.  Stat.,  §§  1999,  2000. 


108  PRINCIPLES  OF  CONSTITUTIONAL  LAW 

The  enforcement,  or  rather  the  attempted  enforcement, 
of  this  legislative  declaration  has  led  the  diplomatic  branch 
of  our  government  into  many  difficulties.  With  reference 
to  a  considerable  number  of  countries  these  difficulties 
have  in  a  great  measure  been  obviated  by  the  negotiation 
with  them  of  naturalization  treaties. 

Judicial  decisions  in  the  United  States  as  to  the  exist- 
ence of  a  right  of  expatriation  in  the  absence  of  statutes 
creating  it  have  not  been  uniform.8 


8  Talbot  v.  Janson,  3  Ball.  133;  1  L.  ed.  540;  Inglis  v.  Sailors'  Snug 
Harbor,  3  Pet.  99;  7  L.  ed.  617;  M'llvaine  v.  Coxe,  2  Cr.  280;  2  L. 
ed.  279.  See  also  Moore's  Digest  of  International  Law,  III,  §  433. 


CHAPTER  XIV 

THE  LEGAL  STATUS  OF  INDIANS 

Indian  lands 

The  legal  relations  of  the  Indians  to  the  various  gov- 
ernments established  by  their  white  conquerors  have  had 
reference,  broadly  speaking:  (1)  to  their  rights  to  the 
lands  occupied  by  them;  and  (2)  to  their  political  status 
either  as  tribes  or  individuals. 

With  reference  to  the  title  possessed  by  Indians  in  the 
lands  occupied  or  hunted  over  by  them,  the  principle  was 
from  the  first  applied  by  the  white  settlers  that  by  dis- 
covery and  occupation  the  title  in  fee  to  all  the  lands  thus 
taken  possession  of  became  vested  in  the  sovereign  of 
the  State  under  whose  authority  the  conquest  was  made. 

The  principle  that  the  original  title  to  all  the  land  within 
a  State  is  in  the  sovereign  of  that  State,  and  that  by  grant 
from  him  all  individual  titles  are  obtained,  was  the  feudal 
one  which  the  crown  lawyers  of  England  had  developed; 
and,  after  the  separation  from  that  country,  the  American 
commonwealths  continued  to  apply  the  doctrine,  sub- 
stituting, however,  of  course,  the  respective  States  for 
the  English  Crown.  With  the  formation  of  the  present 
Union,  and  the  transfer  to  it  by  the  several  States  of  their 
respective  claims  to  public  lands,  the  United  States  was 
substituted  as  the  owner  of  all  the  lands  to  which  private 
titles  had  not  been  obtained.  This  grant  to  the  Federal 
Government  carried  with  it  whatever  interest  or  title  the 
several  States  had  had  in  the  Indian  lands. 

The  first  discussion  in  the  Supreme  Court  of  the  United 

109 


110  PRINCIPLES  OF  THE  CONSTITUTIONAL 

States  of  the  title  or  interest  still  retained  by  the  Indians 
in  the  lands  occupied  by  them,  was  in  the  case  of  Fletcher 
v.  Peck.1  This  case  involved  the  question  whether  the 
State  of  Georgia  had  been  seized  in  fee  of  certain  lands 
which  it  had  sold,  but  later  resumed  possession  of.  Mar- 
shall in  his  opinion,  without  attempting  an  argument, 
said:  "The  majority  of  the  court  is  of  opinion  that  the 
nature  of  the  Indian  title,  which  is  certainly  to  be  respected 
by  all  courts,  until  it  be  legitimately  extinguished,  is  not 
such  as  to  be  absolutely  repugnant  to  seisin  in  fee  on  the 
part  of  the  State." 

In  Johnson  v.  M'Intosh  2  the  question  of  titles  to  In- 
dian lands  was  thoroughly  examined  and  a  conclusion 
reached  which  was  substantially  the  same  as  that  boldly 
stated  without  argument  by  Marshall  in  Fletcher  v. 
Peck.  In  substance  it  was  held  that  although  the  fee  to 
Indian  lands  is  in  the  United  States,  and,  therefore,  that 
the  Indians  are  not  able  to  grant  titles  to  the  same  which 
will  be  recognized  in  the  courts  of  the  United  States, 
nevertheless  these  Indians  have  certain  possessory  rights 
from  which  they  may  be  dispossessed  by  the  United  States 
only  with  their  consent,  and  upon  compensation  made. 

The  doctrines  thus  laid  down  in  1823  by  Marshall  in 
Johnson  v.  M'Intosh  have  never  been  changed,  and  the 
practice  of  the  United  States  Government  uniformly 
throughout  its  history  has  been  in  accordance  with  it. 
That  is  to  say,  where  Indians  have  been  dispossessed  of 
their  lands  their  consent,  in  form  at  least,  has  been  ob- 
tained, and  compensation  made  either  in  the  form  of 
money  or  other  lands.  Where  tribal  relations  have  been 
maintained  these  possessory  rights  have  been  held  to  be 
vested  in  the  tribes  respectively,  and  not  severally  in  the 


1  6  Cr.  87;  3  L.  ed.  162. 

2  8  Wh.  543;  5  L.  ed.  681. 


LAW  OF  THE  UNITED  STATES  111 

individual  Indians.  From  time  to  time,  however,  as  we 
shall  see,  the  United  States  Government  has  provided  for 
the  dividing  up  of  these  tribal  lands  and  their  apportion- 
ment in  severalty  among  the  individual  Indians. 

The  legal  status  of  Indians 

From  the  earliest  times  the  Indians,  though  treated 
as  subject  to  the  sovereignty  first  of  the  foreign  colonizing 
powers,  then  of  the  colonies  or  States,  and,  finally,  of  the 
United  States,  have  been  considered  not  as  citizens  or 
subjects,  that  is,  as  members  of  the  various  bodies  politic 
within  whose  midst  they  have  lived,  but,  from  the  consti- 
tutional point  of  view,  as  aliens,  and  their  tribes  as  foreign 
nations  to  be  dealt  with  as  such,  namely,  by  treaties  and 
agreements  rather  than  by  statutes.  As  alien  nations, 
their  members  have  not,  in  default  of  express  provision 
to  the  contrary,  been  held  subject  to  the  general  laws  of 
the  States  in  which  they  have  resided  or  to  the  statutes 
of  the  General  Government.  The  relations  of  Indians  to 
one  another  have  been  held  to  be  a  matter  for  the  sev- 
eral tribal  authorities  to  regulate,  and  when  these  tribal 
authorities  have  been  impotent,  the  Indians  have  lived 
practically  without  law. 

At  the  same  time,  however,  that  these  Indians  have 
thus  enjoyed  tribal  autonomy,  and  their  relations  to  the 
States  and  to  the  Federal  Government  regulated  by 
treaties  and  agreements  rather  than  by  statute,  and  their 
tribes  spoken  of  as  foreign  nations,  there  has  never  been 
any  question  that,  in  reality,  the  sovereignty  over  them 
after  the  Revolution  and  prior  to  1789  was  in  the  in- 
dividual States,  and  since  that  time  in  the  United  States. 
From  the  point  of  view  of  general  international  relations 
the  Indians  have  always  been  subjects  of  the  American 
States  or  the  United  States,  and,  consequently,  foreign 
States  have  never  been  conceded  to  have  a  right  to  deal 


112  PRINCIPLES  OF  THE  CONSTITUTIONAL 

directly  with  them.  Furthermore,  from  the  point  of  view 
of  American  constitutional  law,  such  attributes  of  inde- 
pendence and  sovereignty  as  they  have  enjoyed  have 
been  derived  from  the  States,  or,  since  1789,  from  the 
Federal  Government.  Hence  these  rights  have  been  at 
all  times  subject  to  withdrawal  without  the  Indians' 
consent.  This  was  conspicuously  shown  by  the  act  of 
Congress  of  1871.  This  law  for  the  enactment  of  which 
the  consent  of  the  Indians  was  neither  sought  nor  obtained 
declared:  "No  Indian  nation  or  tribe  within  the  territory 
of  the  United  States  shall  be  acknowledged  or  recognized 
as  an  independent  nation,  tribe  or  power  with  whom  the 
United  States  may  contract  by  treaty."  3 

Since  this  act  of  1871  the  legal  supremacy  of  the  United 
States  has  been  further  shown  by  a  number  of  legislative 
acts,  some  of  them  extending  the  authority  of  Federal 
laws  and  the  jurisdiction  of  the  Federal  courts  over  acts 
previously  subject  exclusively  to  the  authority  of  the 
tribes;  others  providing  for  the  apportionment  in  severalty 
of  the  tribal  lands  and  the  naturalization  of  Indians  with- 
out their  request  or  consent. 

The  only  direct  references  to  the  Indians  in  the  Con- 
stitution are  the  provisions  that  " Indians  not  taxed"  shall 
not  be  counted  in  determining  the  number  of  represen- 
tatives in  Congress  to  which  a  State  is  to  be  entitled,4 
and  that  Congress  shall  have  power  "to  regulate  com- 
merce .  .  .  with  the  Indian  tribes."  5  It  has,  however, 
been  held  by  the  Supreme  Court  that  the  General  Govern- 
ment has  an  authority  over  the  Indians  not  springing 
from  specific  grants  of  power,  aside  from  the  general 
treaty-making  power,  but  from  the  practical  necessity  of 


3  Rev.  Stat.,  §  2079. 

4  Art.  I,  §  3. 

6  Art.  I,  §  8,  cl.  3. 


LAW  OF  THE  UNITED  STATES  113 

protecting  the  Indians  and  the  non-existence  of  a  power 
to  do  so  in  the  States.6 

Federal  jurisdiction  exclusive.  Cherokee  Nation  v.  Georgia 
The  exclusiveness  of  this  Federal  jurisdiction,  and,  con- 
sequently, the  lack  of  constitutional  power  of  the  States 
in  this  field,  first  came  up  for  serious  discussion  in  the 
Supreme  Court  of  the  United  States  in  the  case  of  the 
Cherokee  Nation  v.  Georgia,7  decided  in  1831.  This  case 
came  before  the  court  on  a  motion  on  behalf  of  the  Cher- 
okee Nation  of  Indians  for  a  subpoena  and  for  an  injunc- 
tion to  restrain  the  authorities  of  the  State  of  Georgia 
from  executing  the  laws  of  the  State  within  the  Cherokee 
territory  as  designated  by  a  treaty  between  the  United 
States  and  the  Cherokee  Nation.  The  case,  however, 
was  not  decided  on  its  merits,  the  majority  of  the  court, 
including  Chief  Justice  Marshall,  holding  that  the  Chero- 
kee Nation  was  not  a  foreign  State  within  the  meaning 
of  the  clause  of  the  Constitution  which  extends  the  Fed- 
eral judicial  power  over  controversies  " between  a  State 
or  the  citizens  thereof,  and  foreign  States,  citizens,  or 
subjects,"  and  gives  to  the  Supreme  Court  original  juris- 
diction in  cases  in  which  a  State  is  a  party.  It  was  held, 
therefore,  that  the  court  was  without  power  to  entertain 
the  suit. 

Upon  this  point,  Marshall,  in  his  opinion,  said :  "  Though 
the  Indians  are  acknowledged  to  have  an  unquestionable, 
and  heretofore  unquestioned  right,  to  the  lands  they  oc- 
cupy until  that  right  shall  be  extinguished  by  a  voluntary 
cession  to  our  government,  yet  it  may  be  well  doubted 
whether  those  tribes  which  reside  within  the  acknowledged 
boundaries  of  the  United  States  can,  with  strict  accuracy, 

6  United  States  v.  Kagama,  118  U.  S.  375;  6  Sup.  Ct.  Rep.  1109; 
30  L.  ed.  228. 

7  5  Pet.  1;8L.  ed.  25. 

8 


114  PRINCIPLES  OF  THE  CONSTITUTIONAL 

be  denominated  foreign  nations.  They  may,  more  cor- 
rectly, perhaps,  be  denominated  domestic  dependent  na- 
tions. They  occupy  a  territory  to  which  we  assert  a 
title  independent  of  their  will,  which  must  take  effect  in 
point  of  possession  when  their  right  of  possession  ceases. 
Meanwhile  they  are  in  a  state  of  pupilage.  Their  relation 
to  the  United  States  resembles  that  of  a  ward  to  its  guard- 
ian. They  look  to  our  government  for  protection;  rely 
upon  its  kindness  and  its  power;  appeal  to  it  for  relief  to 
their  wants;  and  address  the  President  as  their  father. 
They  and  their  country  are  considered  by  foreign  countries, 
as  well  as  by  ourselves,  as  being  so  completely  under  the 
sovereignty  and  dominion  of  the  United  States,  that  any 
attempt  to  acquire  their  lands,  or  to  form  a  political  con- 
nection with  them,  would  be  considered  by  all  as  an  in- 
vasion of  our  territory  and  an  act  of  hostility." 

In  the  great  case  of 'Worcester  v.  Georgia,8  decided  in 
1832,  the  question  of  the  political  status  of  the  Indians 
again  came  before  the  Supreme  Court  for  discussion  and 
a  doctrine  laid  down  which  has  remained  unquestioned 
to  the  present  day.  This  case,  like  Cherokee  Nation  v. 
Georgia,  grew  out  of  the  attempt  of  Georgia  to  exercise 
jurisdiction  over  Indian  territories  situated  within  the 
State's  limits.  This  action  of  the  State  was  declared  un- 
constitutional and  void,  the  exclusive  authority  of  the 
Federal  Government  being  emphatically  asserted,  "the 
Cherokee  Nation "  the  court  say,  "  is  a  distinct  com- 
munity, occupying  its  own  territory,  with  boundaries  ac- 
curately described,  in  which  the  laws  of  Georgia  can  have 
no  force.  .  .  .  The  whole  intercourse  between  this  nation 
is  by  our  Constitution  and  laws,  vested  in  the  Govern- 
ment of  the  United  States." 


8  6  Pet.  515;  8  L.  ed.  483.    See  also  The  Kansas  Indians,  5  Wall. 
737;  18  L.  ed.  667;  The  New  York  Indians,  5  Wall.  761;  18  L.  ed.  708. 


LAW  OF  THE  UNITED  STATES  115 

Naturalization  of  Indians  by  statute 

In  1884,  in  the  case  of  Elk  v.  Wilkins,9  the  question  arose 
as  to  whether  an  Indian,  born  a  member  of  one  of  the  In- 
dian tribes  within  the  United  States,  became  a  citizen 
of  the  United  States,  under  the  Fourteenth  Amendment, 
by  reason  of  his  birth  within  the  United  States,  and  his 
afterwards  voluntarily  separating  himself  from  his  tribe 
and  taking  up  residence  among  white  citizens.  The 
court  held  negatively,  the  statement  being  made  that 
uthe  alien  and  dependent  condition  of  the  members  of 
the  Indian  tribes  could  not  be  put  off  at  their  own  will, 
without  action  or  assent  of  the  United  States." 

Since  this  decision  a  number  of  acts  of  Congress  have 
been  passed  which  have  had  the  effect  of  destroying,  to  a 
very  considerable  extent,  the  autonomous  tribal  govern- 
ments of  the  Indians  and  of  subjecting  them  to  the  im- 
mediate legislative  control  of  Congress  instead  of  to  the 
treaty-making  power.10 

At  various  times  during  past  years,  Congress  has  de- 
clared, as  to  particular  Indian  tribes,  that  their  lands 
should  be  divided  and  held  in  severalty  by  their  respective 
members,  and  that,  thereupon,  such  Indians  should  be- 
come citizens  of  the  United  States,  and  pass  immediately 
from  the  exclusive  jurisdiction  of  the  Federal  Government 
to  that  of  the  States  in  which  they  reside.  By  the  General 
Land  in  Severalty  Law,  known  as  the  "Dawes  Act,"  ap- 
proved February  8,  1887,  the  President  was  given  the 
power  to  apply  this  process  to  practically  every  Indian 
reservation  in  the  country.  The  peculiarity  of  these  acts 
is,  it  will  be  observed,  that  they  make  citizens  of  Indians 


9 112  U.  S.  94;  5  Sup.  Ct.  Rep.  41;  28  L.  ed.  643. 

10  As  to  the  constitutionality  of  this  legislation,  and  its  effect  upon 
the  jurisdiction  of  the  States,  see  United  States  v.  Kagama,  118  U.  S. 
375;  6  Sup.  Ct.  Rep.  1109;  30  L.  ed.  228. 


116  PRINCIPLES  OF  CONSTITUTIONAL  LAW 

against  their  will.     The  action  is  taken  at  the  discretion 
of  the  President  and  the  result  is  citizenship.11 


11  For  cases  sustaining  this  legislation,  and  declaring  generally  the 
extent  of  the  legislative  authority  of  Congress  over  the  Indians,  see 
Cherokee  Nation  v.  Southern  Kansas  Ry.  Co.,  135  U.  S.  641;  10  Sup. 
Ct.  Rep.  965;  34  L.  ed.  295;  Stephens  v.  Cherokee  Nation,  174  U.  S. 
445,  19  Sup.  Ct.  Rep.  722;  43  L.  ed.  1041;  Cherokee  Nation  v.  Hitch- 
cock, 187  U.  S.  294;  23  Sup.  Ct.  Rep.  115;  47  L.  ed.  183;  Lone  Wolf 
v.  Hitchcock,  187  U.  S.  553;  23  Sup.  Ct.  Rep.  216;  47  L.  ed.  299; 
United  States  v.  Rickert,  188  U.  S.  432;  23  Sup.  Ct.  Rep.  478;  47  L. 
ed.  532;  In  re  Hoff,  197  U.  S.  488;  25  Sup.  Ct.  Rep.  506;  49  L.  ed.  848; 
Tiger  v.  Western  Investment  Co.,  31  Sup.  Ct.  Rep.  378;  Hallowell 
v.  United  States,  31  Sup.  Ct,  Rep.  587. 


CHAPTER  XV 

THE  ADMISSION   OF  NEW   STATES 

The  admission  of  new  States 

The  process  of  admitting  new  States  to  the  American 
Union  is  a  comparatively  simple  one  and  but  few  con- 
stitutional questions  have  arisen  in  connection  with  it. 
The  constitutional  clause  governing  the  subject  reads  as 
follows:  "New  States  may  be  admitted  by  the  Congress 
into  this  Union;  but  no  new  State  shall  be  formed  or  erected 
within  the  jurisdiction  of  any  other  State;  or  any  State 
be  formed  by  the  junction  of  two  or  more  States  or  parts 
of  States,  without  the  consent  of  the  legislatures  of  the 
States  concerned  as  well  as  of  the  Congress."1  It  will 
thus  be  seen  that  nothing  is  said  as  to  the  conditions 
that  must  be  met  by  a  given  Territory  before  it  may 
claim,  or  Congress  be  obligated  to  grant,  admission  to 
the  Union  as  a  State.  The  whole  matter  is  left  abso- 
lutely to  the  discretion  of  Congress.  There  can  be  no 
question  that  at  the  time  of  the  adoption  of  the  Consti- 
tution the  idea  was  generally  held  that  all  non-State  terri- 
tory held  or  to  be  held  by  the  United  States  was  to  be 
regarded  as  material  from  which  new  States  were  to  be 
created  as  soon  as  population  and  material  development 
should  warrant.  But  no  attempt  was  made  to  force  the 
hand  of  Congress  under  circumstances  that  could  not  be 


Art.  IV,  §  a 

117 


118  PRINCIPLES  OF  THE  CONSTITUTIONAL 

foreseen  by  defining  in  the  Constitution  itself  the  condi- 
tions under  which  Statehood  should  be  accorded.  But 
one  limitation  is  laid  down,  and  that  impliedly,  and  this 
relates  rather  to  the  status  of  new  States  after  admission, 
than  to  the  process  of  admission  itself.  This  is  that  the 
new  commonwealths,  when  received  into  constitutional 
fellowship  with  the  older  members  of  the  Union,  shall 
stand  upon  an  exactly  equal  footing  with  them. 

As  has  been  seen,  the  Constitution  does  not  attempt 
to  fix  the  modus  operandi  in  which  new  members  are  to  be 
admitted  into  the  Union.  It  does  not  even  say  whether 
they  are  to  be  formed  from  territory  already  under  its 
sovereignty,  and  in  one  instance,  that  of  Texas,  a  new  State 
was  received  by  the  direct  process  of  incorporating,  by  a 
joint  resolution  of  Congress,  a  foreign  independent  State. 
In  all  other  cases,  however,  new  States  have  been  formed 
from  areas  already  belonging  to  the  United  States  and  or- 
ganized as  Territories. 

There  has  been  some  little  constitutional  speculation 
as  to  whether  the  decisive,  creative  act  in  the  bringing  into 
existence  of  a  new  State  is  the  Resolution  of  Congress 
approving  the  Constitution  that  has  been  drawn  up  and 
declaring  the  former  Territory  one  of  the  States  of  the 
Union;  or  whether  the  vivifying  force  is  derived  from  the 
constituent  act  of  the  people  of  the  Territory  in  framing 
and  adopting  their  State  Constitution.  The  latter  is  the 
view  most  acceptable  to  the  States'  Rights  School.  It 
would  seem  to  be  sufficiently  plain,  however,  that  the 
former  is  the  correct  doctrine;  for  there  can  be  no  question 
that  it  lies  within  the  power  of  Congress  arbitrarily  to 
refuse  its  approval  to  a  Constitution  that  has  been  framed 
by  the  people  of  a  Territory  strictly  in  accordance  with 
the  requirements  of  the  Enabling  Act.  The  final  and, 
therefore,  decisive  step,  has  thus  to  be  taken  by  the  Fed- 
eral Government. 


LAW  OF  THE  UNITED  STATES  119 

This  doctrine  has,  indeed,  received  implied  judicial  sanc- 
tion at  the  hands  of  the  United  States  Supreme  Court  in 
the  case  of  Scott  v.  Jones.2 


2  5  How.  343;  12  L.  ed.  181.    Cf.  Jameson,  Constitutional  Conven- 
tion, §  207. 


CHAPTER  XVI 

THE  POWER  OF  THE  UNITED  STATES  TO  ACQUIRE  TERRITORY 

Sources  of  power 

In  the  chapters  that  have  gone  before  the  effort  has 
been  made  to  set  forth  the  constitutional  relations  ex- 
isting between  the  Union  and  its  commonwealth  members. 
From  the  very  beginning,  however,  the  American  con- 
stitutional system  has  included  other  political  units  than 
the  States.  These  units  are  Territories,  Dependencies, 
and  a  Federal  District  or  Seat  of  National  Government. 
To  a  consideration  of  the  constitutional  questions  incident 
to  the  annexation  and  government  by  the  National  Gov- 
ernment of  the  territories  and  peoples  of  which  these 
political  elements  are  composed,  we  shall  now  turn.  This 
will  involve  a  discussion  of  the  following  points:  (1)  The 
constitutional  power  of  the  United  States  to  acquire  ter- 
ritories; (2)  the  modes  or  purposes  for  which  they  may  be 
acquired;  and  (3)  their  constitutional  status.  First  then 
as  to  the  power  to  acquire. 

The  constitutional  power  of  the  United  States  to  annex 
foreign  territory  has  been,  at  various  times,  and  by  various 
writers,  derived  from  the  following  sources: 

1.  The  power  to  admit  new  States  into  the  Union. 

2.  The  power  to  declare  and  carry  on  war. 

3.  The  power  to  make  treaties. 

4.  The  power,  as  a  sovereign  State,  to  acquire  territory 
by  discovery  and  occupation  or  by  any  other  methods 
recognized  as  proper  by  international  usage. 

With  regard  to  deriving  the  power  to  annex  from  the 
120 


LAW  OF  THE  UNITED  STATES  121 

power  to  admit  new  States,  it  is  sufficient  to  observe  that 
not  only  is  resort  to  this  source  unnecessary,  but,  when 
appealed  to,  it  would  not  seem  to  yield  to  the  National 
Government  as  ample  powers  as  are  furnished  it  when  the 
treaty  and  war  powers  are  relied  upon :  and,  furthermore, 
that  considerable  support  is  given  to  the  position  that, 
when  the  power  is  exercised,  the  consent  of  the  other 
States  should  be  obtained 

There  can  be  no  question  that  it  was  the  general  in- 
tention at  the  time  the  Constitution  was  adopted  that 
all  the  territory  then  under  the  sovereignty  of  the  United 
States,  and  not  included  within  the  limits  of  any  one  of  the 
then  several  States,  should  ultimately  be  divided  up  and 
admitted  as  States  into  the  Union.  Also  it  is  to  be  admit- 
ted that,  beyond  all  reasonable  doubt,  those  who  framed 
and  adopted  "the  Federal  Constitution  did  not  anticipate, 
and  therefore  cannot  be  said  deliberately  to  have  provided 
for,  the  time  when  the  United  States  should  extend  its 
sovereignty  over  territories  not  intended  ultimately  for 
Statehood.  Nor  can  it  be  said  that  a  different  view  was 
held  upon  this  point  by  practically  anyone  until  compara- 
tively recent  times.  But,  admitting  this,  the  conclusion 
that  the  annexation  of  territory  not  intended  for  ultimate 
Statehood  is  an  unconstitutional  act  does  not  follow.  One 
must  go  further  and  show  that  had  the  particular  case 
been  suggested  to  those  framers  and  adopters  of  the  Con- 
stitution, they  would  have  so  modified  its  language  as  to 
have  excluded  it.1  In  the  second  place,  even  were  this 
principle  of  constitutional  construction  not  sufficiently 


1  In  Dartmouth  College  v.  Woodward,  4  Wh.  518;  4  L.  ed.  629, 
Marshall  says:  "The  case  being  within  the  words  of  the  rule,  must 
be  within  its  operation  likewise,  unless  there  be  something  within 
its  literal  construction  so  obviously  absurd  or  mischievous,  or  re- 
pugnant to  the  general  spirit  of  that  instrument  as  to  justify  those 
who  expound  the  Constitution  in  making  it  an  exception." 


122  PRINCIPLES  OF  THE  CONSTITUTIONAL 

broad  to  uphold  the  Federal  power  in  question,  there  would 
be  applicable  two  principles,  each  of  which  would  prevent 
the  Supreme  Court  from  passing  upon  this  point.  The 
first  of  these  principles  is  the  one  elsewhere  mentioned 
that  the  question  of  de  facto  and  de  jure  sovereignty  is  one 
regarding  which  the  courts  hold  themselves  bound  by  the 
determination  of  the  executive  and  legislative  branches 
of  the  government;  the  second  is  that  the  motive  of  an 
act,  except  for  the  purpose  of  solving  an  ambiguity  in  its 
application,  is  not  a  proper  subject  for  judicial  examina- 
tion, and  that,  therefore,  in  the  case  of  annexation  of 
territory,  it  would  not  be  proper  for  the  court  to  require 
whether  or  not  ultimate  Statehood  is  intended  to  be 
granted  the  lands  and  peoples  obtained.  Indeed,  as  we 
have  seen,  as  regards  the  contiguous  continental  territories 
of  the  United  States,  it  has  been  uniformly  held  that  the 
grant  to  them  of  Statehood  lies  wholly  within  the  dis- 
cretion of  Congress,  and  that  no  legal  means  exist  for  com- 
pelling action  should  that  body  arbitrarily  refuse  for  an 
indefinite  length  of  time  to  grant  this  privilege  to  a  de- 
serving territory. 

The  question  whether  or  not  territory  not  contiguous 
to  the  other  territory  of  the  United  States  may  be  annexed 
is  one  very  similar  to  the  one  just  discussed  and  may  be 
answered  in  much  the  same  manner.2 

The  right  to  annex  based  on  the  treaty  and  war  powers 

The  Supreme  Court  has  held  that  whether  or  not  the 
right  to  admit  States  into  the  Union  carries  with  it  the 
power  to  acquire  new  territory,  this  power  is  derivable 
from  the  authority  of  the  General  Government  to  declare 
and  carry  on  war  and  to  enter  into  treaties.  This  has  been 


See  Senate  Kept.  681;  55th  Cong.,  2d  Sess.,  pp.  47,  48. 


LAW  OF  THE  UNITED  STATES  123 

repeatedly  declared,  both  in  earlier  cases  and  in  the  more 
recent  so-called  Insular  Cases. 

In  American  Insurance  Co.  v.  Canter,3  Marshall  says, 
without,  apparently,  deeming  an  argument  necessary: 
"The  Constitution  confers  absolutely  upon  the  govern- 
ment of  the  Union  the  power  of  making  war  and  of  mak- 
ing treaties;  consequently  that  government  possesses  the 
power  of  acquiring  territory,  either  by  conquest  or  treaty." 
In  Fleming  v.  Page,4  Taney  says:  "The  United  States  may 
extend  its  boundaries  by  conquest  or  treaty,  and  may  de- 
mand the  cession  of  territory  as  the  condition  of  peace, 
in  order  to  indemnify  its  citizens  for  the  injuries  they  have 
suffered  or  to  reimburse  the  government  for  the  expenses 
of  the  war."  In  Stewart  v.  Kahn,5  the  court  say:  "The 
war  power  and  the  treaty-making  power  each  carries  with 
it  authority  to  acquire  new  territory."  And  in  United 
States  v.  Huckabee6  it  is  declared:  "Power  to  acquire  ter- 
ritory either  by  conquest  or  treaty  is  vested  by  the  Con- 
stitution in  the  United  States." 

It  is  to  be  observed  that  in  none  of  these  cases  is  there 
any  argument  to  show  just  why,  and  in  what  manner,  the 
acquiring  of  the  foreign  territory  is  a  necessary  or  proper 
means  by  which  war  may  be  carried  on,  or  treaties  entered 
into.  In  fact  it  will  be  seen  that  the  acquiring  of  foreign 
territory  has  been  treated  as  a  result  incidental  to,  rather 
than  as  a  means  for,  the  carrying  on  of  war  and  the  con- 
ducting of  foreign  relations. 

This  leads  to  the  consideration  of  the  doctrine  which, 
constitutionally  speaking,  appeals  to  the  author  as  the 
soundest  mode  of  sustaining  the  power  of  the  United 


3lPet.  511;  7  L.  ed.  242. 
4  9  How.  603;  13  L.  ed.  276. 
5 11  Wall.  493;  20  L.  ed.  176. 
6 16  Wall.  414;  21  L.  ed.  457. 


124  PRINCIPLES  OF  THE  CONSTITUTIONAL 

States  to  acquire  territory,  as  well  as  the  one  which,  in 
application,  affords  the  freest  scope  for  its  exercise.  Ac- 
cording to  this  principle  the  right  to  acquire  territory  is 
to  be  searched  for,  not  as  implied  in  the  power  to  admit 
new  States  into  the  Union,  or  as  dependent  specifically 
upon  the  war  and  treaty  powers,  but  as  derived  from 
the  fact  that  in  all  relations  governed  by  the  principles 
of  international  law  the  General  Government  may  prop- 
erly be  construed  to  have,  in  the  absence  of  express  pro- 
hibitions, all  the  powers  possessed  generally  by  the  sov- 
ereign States  of  the  world.  This  doctrine  thus  is  that 
the  control  of  foreign  relations  being  exclusively  vested 
in  the  United  States,  that  government  has  in  the  exer- 
cise of  this  jurisdiction  the  same  power  to  annex  foreign 
territory  that  is  possessed  by  other  sovereign  States. 
The  argument  in  support  of  this  doctrine  has  already 
been  given. 

In  one  instance  at  least  the  United  States  has  acquired 
territory  under  an  authority  which  could  not  be,  and  was 
not  alleged  to  be,  derived  from  the  treaty-making  power 
or  from  any  other  specific  express  power,  but  was  upheld  by 
the  Supreme  Court  as  based  upon  the  general  sovereignty 
of  the  nation  with  respect  to  all  matters  that  fall  within 
the  field  governed  by  international  law.  Reference  is  here 
had  to  the  annexation  in  1856  of  the  Guano  Islands  by  a 
statute  of  Congress  which  declared  that  whenever  any 
citizen  of  the  United  States  should  discover  a  deposit  of 
guano  on  any  island,  rock  or  key  not  within  the  lawful 
jurisdiction  of  any  other  government,  and  should  take 
possession  thereof,  such  island,  rock  or  key  might,  at  the 
discretion  of  the  President,  be  considered  as  appertaining 
to  the  United  States.7 


7  See  Jones  v.  United  States,  137  U.  S.  202;  11  Sup.  Ct.  Rep.  80; 
34  L.  ed.  691. 


LAW  OF  THE  UNITED  STATES  125 

The  modes  in  which  territory  may  be  acquired  by  the  United 
States 

Having  discussed  the  constitutional  power  of  the  United 
States  to  acquire  territory  whether  by  treaty,  conquest 
or  discovery  and  occupation,  we  now  approach  the  question 
as  to  the  modes  by  which  this  Federal  authority  may  be 
exercised. 

A  history  of  the  -territorial  expansion  of  the  United 
States  shows  that  territories  have  been  annexed  in  three 
different  ways:  (1)  by  statute;  (2)  by  treaty,  and  (3)  by 
joint  resolution  of  the  two  houses  of  Congress. 

The  process  of  expanding  American  sovereignty  by 
simple  statute  and  executive  action  authorized  thereby, 
was  illustrated,  as  we  have  just  seen,  in  the  case  of  the 
Guano  Islands.  The  annexation  of  territory  by  treaty 
has  been  the  method  most  usually  employed.  The  Louisi- 
ana Territory,  Florida,  Alaska,  the  Mexican  cessions,  the 
Samoan  Islands,  Porto  Rico,  and  the  Philippines  were 
obtained  in  this  manner.  The  constitutionality  of  this 
mode  of  acquisition  has  already  been  discussed. 

Annexation  by  joint  resolution 

In  two  instances,  that  of  Texas,  in  1845,  and  Hawaii  in 
1898,  the  sovereignty  of  the  United  States  has  been  ex- 
tended over  new  territory  by  means  of  a  joint  resolution 
of  the  two  Houses  of  Congress.  In  the  case  of  Texas  an 
attempt  had  been  made  to  annex  the  territory  by  treaty, 
but  this  effort,  requiring  a  two-thirds  favorable  vote  in  the 
Senate,  had  failed.  Thereupon  the  same  end  was  secured 
by  a  joint  resolution  which  needed  but  a  simple  majority 
vote  in  each  of  the  two  branches  of  the  national  legisla- 
ture, with,  of  course,  the  approval  of  the  President. 

The  peculiarity  of  the  annexation  of  this  State  was  not 
simply  that  it  came  under  American  sovereignty  by  joint 
resolution  but  that  it  became  at  once  one  of  the  States  of 


126  PRINCIPLES  OF  CONSTITUTIONAL  LAW 

the  Union,  and  thus  never  had  the  transitional  territorial 
status.  This  fact,  indeed,  gave  additional  constitutional 
support  to  the  action  of  Congress  in  the  matter,  for  to  that 
body  is  given  by  the  Constitution  the  power  to  admit  new 
States  into  the  Union,  and,  therefore,  its  admission  of 
Texas  to  fellowship  with  other  American  commonwealths 
might  easily  be  construed  as  a  legitimate  exercise  of  that 
power. 

The  acquisition  of  the  Hawaiian  Islands  was  another 
instance  of  the  extension  of  the  United  States  sovereignty 
by  a  simple  joint  resolution  of  the  two  branches  of  Con- 
gress. In  this  case,  however,  the  islands  were  not,  as  was 
Texas,  admitted  as  a  State  or  States  of  the  Union,  but  were 
simply  annexed  as  a  territory. 

The  constitutionality  of  this  mode  of  annexation  has 
never  been  disputed  in  the  courts,  because,  as  has  been 
earlier  pointed  out,  questions  as  to  the  territorial  extent  of 
the  sovereignty  of  the  United  States  are  political  in  char- 
acter and,  therefore,  the  decisions  of  the  legislative  and 
executive  branches  of  government  as  to  them  are  not 
judicially  reviewable. 


CHAPTER  XVII 

THE  CONSTITUTIONAL  SOURCES  OF  THE  POWER  OF  CONGRESS 
TO  GOVERN  THE  TERRITORIES 

Power  to  govern  Territories  not  questioned 

There  has  never  been  any  question  as  to  the  power  of 
the  United  States  to  govern  the  Territories  possessed  or 
acquired  by  it  and  not  included  within  the  limits  of  any  of 
the  individual  States.  The  only  question  has  been  as  to 
the  source  and  extent  of  this  power.  The  Federal  author- 
ity to  govern  has  been  derived  from  three  sources:  (1)  The 
express  power  given  to  Congress  "  to  dispose  of  and  make 
all  needful  rules  and  regulations  respecting  the  territory 
or  other  property  belonging  to  the  United  States;"  (2)  the 
implied  power  to  govern  derived  from  the  right  to  acquire 
territory;  and  (3)  the  power  implied  from  the  fact  that 
the  States  admittedly  not  having  the  power,  and  the  power 
having  to  exist  somewhere,  it  must  rest  in  the  Federal 
Government. 

All  three  of  these  sources  of  authority  have  been,  at 
different  times,  recognized  by  the  Supreme  Court,1 

Power  to  govern  absolute 

Since  the  time  when  the  necessity  for  the  exercise  of  the 
power  arose,  there  has  been  almost  no  question  as  to  the 

1  Sere  v.  Pilot,  6  Cr.  332;  3  L.  ed.  240;  American  Insurance  Co.  vt 
Canter,  1  Pet.  511,  7  L.  ed.  242;  Cross  v.  Harrison,  16  How.  164;  14 
L.  ed.  889;  Scott  v.  Sandford,  19  How.  393;  15  L.  ed.  691;  United 
States  v.  Kagama,  118  U.  S.  375;  6  Sup.  Ct.  Rep.  1109;  30  L.  ed,  228; 
Mormon  Church  v.  United  States,  136  U.  S.  1;  10  Sup.  Ct.  Rep.  792; 
34  L.  ed.  478;  DeLima  v.  Bidwell,  182  U.  S.'l;  21  Sup.  Ct.  Rep.  743; 
45  L.  ed.  1041. 

127 


128  PRINCIPLES  OF  THE  CONSTITUTIONAL 

absolute  power  of  Congress  to  determine  the  form  of  polit- 
ical and  administrative  control  to  be  erected  over  the  Ter- 
ritories, and  to  fix  the  extent  to  which  their  inhabitants 
shall  be  admitted  to  a  participation  in  their  own  govern- 
ment. Both  by  legislative  practice  and  by  judicial  sanc- 
tion, the  principle  has,  from  the  first  been  asserted  that 
upon  this  matter  the  judgment  of  Congress  is  absolute. 
This,  however,  has  not  been  construed  to  carry  with  it  the 
absolute  control  of  the  Federal  legislature  over  the  civil 
rights — the  private  rights  of  person  and  property  of  the 
inhabitants  of  the  Territories.  The  extent  of  the  power 
of  Congress  with  respect  to  these  will  be  discussed  in  the 
next  chapter. 

The  plenary  character  of  the  legislative  power  of  Con- 
gress with  respect  to  the  government  of  Territories  is 
perhaps  best  stated  in  National  Bank  v .  County  of  Yank- 
ton.2  Chief  Justice  Waite,  speaking  for  the  court,  says: 
"  Congress  may  not  only  abrogate  laws  of  the  territorial 
legislatures,  but  it  may  itself  legislate  directly  for  the 
local  government.  It  may  make  a  void  act  of  the  terri- 
torial legislature  valid,  and  a  valid  act  void.  In  other 
words,  it  has  full  and  complete  legislative  authority  over 
the  people  of  the  Territories  and  all  the  departments  of 
the  territorial  governments.  It  may  do  for  the  Territories 
what  the  people,  under  the  Constitution  of  the  United 
States,  may  do  for  the  States." 

Territorial  governments  are\congressional  governments 

The  governments  established  in  the  Territories  by  Con- 
gress act  as  agencies  of  Congress,  in  the  same  sense  that 
an  administrative  board  acts  as  the  agent  of  the  lawmak- 
ing  body  that  creates  it.  As  such  congressional  agencies, 

2  101  U.  S.  129;  25  L.  ed.  1046.  See  also,  for  similar  comprehen- 
sive statements,  Murphy  v.  Ramsey,  114  U.  S.  15;  5  Sup.  Ct.  Rep. 
747;  29  L.  ed.  47;  and  Mormon  Church  v.  United  States,  136  U.  S. 
1;  10  Sup.  Ct.  Rep.  792;  34  L.  ed.  478. 


LAW  OF  THE  UNITED  STATES  129 

the  territorial  governments  are,  therefore,  not  considered 
as  parts  of  the  General  Government  established  or  directly 
provided  for  by  the  Constitution.  Thus,  speaking  with 
reference  to  the  courts  established  in  the  Territories, 
Marshall  in  an  early  case  declared:  " These  .  .  .  are  not 
constitutional  courts  in  which  the  judicial  power  con- 
ferred by  the  Constitution  on  the  General  Government 
can  be  deposited.  They  are  incapable  of  receiving  it. 
They  are  legislative  courts,  created  in  virtue  of  the  general 
right  of  sovereignty  which  exists  in  the  government,  or 
in  virtue  of  that  clause  which  enables  Congress  to  make  all 
needful  rules  and  regulations  respecting  the  territory  be- 
longing to  the  United  States."  3 

And  again  in  Benner  v.  Porter  4  the  court  say,  with  refer- 
ence to  territorial  governments:  "They  are  legislative 
governments,  and  their  courts  legislative  courts,  Congress, 
in  the  exercise  of  its  powers  on  the  organization  and  gov- 
ernment of  the  territories,  combining  the  power  of  both 
the  Federal  and  State  authorities.  There  is  but  one  system 
of  government  or  of  laws  operating  within  their  limits,  as 
neither  is  subject  to  the  constitutional  provisions  in  re- 
spect to  State  and  Federal  jurisdiction.  They  are  not 
organized  under  the  Constitution,  nor  subject  to  its  com- 
plex distribution  of  the  powers  of  government,  as  the  or- 
ganic law;  but  are  the  creations,  exclusively,  of  the  legis- 
lative department,  and  subject  to  its  supervision  and 
control.  Whether  or  not  there  are  provisions  in  that  in- 
strument which  extend  to  and  act  upon  these  territorial 
governments,  it  is  not  now  material  to  examine." 


3  American  Insurance  Co.  v.  Canter,  1  Pet.  511;  7  L.  ed.  242. 

4  9  How.  235;  13  L.  ed.  119.    See  also  In  re  Cooper,  143  U.  S.  472; 
12  Sup.  Ct.  Rep.  453;  36  L.  ed.  232;  and  United  States  v.  Coe,  155 
U.  S.  76;  15  Sup.  Ct.  Rep.  16;  39  L.  ed.  76,  to  the  effect  that  ad- 
miralty jurisdiction  may  be  exercised  by  these  courts,  and  also  that 
the  Supreme  Court  may  entertain  appeals  from  them. 

9 


CHAPTER  XVIII 

THE   DISTRICT   OF   COLUMBIA 

The  government  of  the  District  of  Columbia 

The  constitutional  status  of  the  district  used  as  the  seat 
of  the  Federal  Government  is  almost  the  same  as  that  of 
the  Territories.  Clause  17  of  §  8  of  Article  I  of  the  Con- 
stitution empowers  Congress  "to  exercise  exclusive  legisla- 
tion in  'all  cases  whatsoever  over  such  district  (not  ex- 
ceeding ten  miles  square)  as  may  by  cession  of  particular 
States,  and  the  acceptance  of  Congress,  become  the  seat 
of  the  Government  of  the  United  States." 

The  District  of  Columbia  though  not  a  "State"  in  the 
sense  in  which  that  word  is  used  in  the  constitutional  clause, 
which  gives  to  the  Federal  courts  jurisdiction  in  suits  be- 
tween citizens  of  different  States,  it  is  declared  in  DeGeofroy 
v.  Riggs,1  to  be  a  State  within  the  meaning  of  a  treaty 
granting  certain  rights  to  aliens  within  the  "States  of  the 
Union."  That  the  District  is  a  part  of  the  United  States 
internationally  viewed  was  declared  in  Loughborough  v. 
Blake,  and  this  dictum  has  never  been  questioned. 

But  with  reference  to  the  form  of  government  to  be  given 
the  District,  the  authority  of  Congress  is  as  absolute  as  we 


1  133  U.  S.  258;  10  Sup.  Ct.  Rep.  295;  33  L.  ed.  642.  See  also 
Loughborough  v.  Blake,  5  Wh.  317;  5  L.  ed.  98,  and  Hepburn  v. 
Ellzey,  2  Cr.  445;  2  L.  ed.  332,  in  the  last  of  which  cases  it  was  held 
that  the  district  is  not  a  State  of  the  Union  within  the  meaning  of 
that  provision  of  the  judicial  article  of  the  Constitution  which  gives 
to  the  Federal  courts  jurisdiction  in  suits  between  citizens  of  different 
States. 

130 


LAW  OF  THE  UNITED  STATES  131 

have  seen  it  to  be  with  regard  to  the  Territories.  "The 
Congress  of  the  United  States  being  empowered  by  the 
Constitution  '  to  exercise  exclusive  jurisdiction  in  all  cases 
whatever  '  over  the  seat  of  the  National  Government,  has 
the  entire  control  over  the  District  of  Columbia  for  every 
purpose  of  government,  national  or  local.  It  may  exercise 
within  the  District  all  legislative  powers  that  the  legisla- 
ture of  a  State  may  exercise  within  a  State."2 

The  Constitution  provides  that  Congress  shall  "exer- 
cise exclusive  legislation  in  all  cases  whatsoever  "  over  such 
district  as  shall,  by  cession  of  particular  States,  become  the 
seat  of  Government.  To  the  author  it  would  seem  that 
the  intent  of  those  who  framed  this  provision  was  that  by 
it  Congress  should  be  granted  authority  exclusive  of  the 
State  or  States  by  which  the  territory  constituting  the 
District  might  be  ceded.  Congress  has,  however,  since 
the  beginning,  acted  upon  the  assumption  that  by  this 
provision  it  is  intended  that  while  ordinary  municipal 
powers  may  be  delegated  to  the  local  governing  body  in 
the  District,  it  may  not  delegate  to  such  body  the  general 
legislative  powers  possessed  by  a  State  of  the  Union ;  that, 
in  other  words,  the  legislative  authority  over  the  District 
being  vested  by  the  Constitution  "  exclusively  "  in  Con- 
gress, it  may  not  by  delegation  be  exercised  by  any  other 
body.  Thus,  dividing  the  governing  powers  in  the  United 
States  into  national,  State  and  local,  it  has  been  held  neces- 
sary that,  as  regards  the  District,  the  first  two  must  be 
exercised  by  Congress  itself.3 


2  Capital  Traction  Co.  v.  Hof,  174  U.  S.  1;  19  Sup.  Ct.  Rep.  580; 
43  L.  ed.  873. 

3  It  cannot  be  said  that  the  Supreme  Court  has  passed  squarely 
upon  this  point,  but  by  various  dicta  the  doctrine  stated  in  the  text 
has  been  declared.  See,e.  g.,  Stoutenburgh  v.  Hennick,  129  U.  S.  141; 
9  Sup.  Ct.  Rep.  256;  32  L.  ed.  637;  Cohens  v.  Virginia,  6  Wh.  264;  5 
L.  ed.  257.    Also  Roach  v.  Riswick,  McArthur  &  Mackay,  171. 


132  PRINCIPLES  OF  THE  CONSTITUTIONAL 

When  legislating  for  the  District,  and  the  same  is  true  of 
the  Territories,  Congress  acts  not  only  as  a  local  legislature 
in  the  sense  that  a  State  legislature  acts  as  the  local  legis- 
lature for  that  State,  but  also  as  a  National  Legislature. 
Whence  it  follows  that  the  laws  thus  enacted,  though  of 
course  only  applicable  to  the  local  areas,  the  District,  or 
the  Territories,  especially  referred  to,  are  yet  national  acts 
in  that,  so  far  as  it  is  necessary  for  their  enforcement,  they 
have  a  validity  throughout  the  Union.  This  doctrine  is 
clearly  laid  down  by  Marshall  in  Cohens  v.  Virginia,4  and 
has  not  since  been  questioned. 


Places  purchased 

The  same  clause  of  the  Constitution  which  grants  to 
Congress  exclusive  jurisdiction  over  the  district  to  be  se- 
lected for  the  seat  of  the  National  Government,  author- 
izes Congress  "to  exercise  like  authority  over  all  places 
purchased  by  the  consent  of  the  legislature  of  the  State 
in  which  the  same  shall  be  for  the  erection  of  forts,  mag- 
azines, arsenals,  dockyards,  and  other  needful  buildings." 

The  Federal  ownership  of  such  tracts  within  the  States 
is  to  be  sharply  distinguished  from  political  jurisdiction 
over  them.  This  latter,  as  the  Constitution  provides, 
may  be  obtained  only  when  the  districts  have  been  ac- 
quired with  the  consent  of  the  States  in  which  they  are 
situated. 

The  language  of  the  clause  would  seem  to  indicate  that 
the  framers  of  the  Constitution  intended  that  the  General 
Government  could  or  should  acquire  land  within  the  States 
only  by  purchase,  and  with  the  consent  of  the  States.  In 
practice,  however,  this  consent  has  not  always  been  ob- 
tained, or  been  deemed  necessary.  But,  in  such  cases, 


4  6  Wh.  264;  5  L.  ed.  257. 


LAW  OF  THE  UNITED  STATES  133 

the  political  jurisdiction  of  the  State  is  not  ousted,  unless 
the  lands  are  used  for  the  purposes  of  government.5 

Also,  the  General  Government  is  able  to  acquire  lands 
within  the  States  by  the  exercise  of  the  right  of  eminent 
domain,  a  right  which  it  may  employ  when  "necessary 
and  proper  "  to  the  exercise  of  any  of  its  expressly  given 
powers.  When  thus  obtained,  the  lands,  like  those  ac- 
quired by  direct  purchase  and  without  the  consent  of  the 
States,  remain  subject  to  the  general  political  jurisdiction 
of  the  States  in  which  they  are  located.  As  property  of 
the  United  States  they  are  not,  however,  subject  to  tax- 
ation by  the  States.6 

5  Ft.  Leavenworth  R.  R.  Co.  v.  Lowe,  114  U.  S.  525;  5  Sup.  Ct. 
Rep.  995;  29  L.  ed.  264. 

6  Kohl  v.  United  States,  91  U.  S.  367;  23  L.  ed.  449;  St.  Louis  v. 
W.  U.  Telegraph  Co.,  148  U.  S.  92;  13  Sup.  Ct.  Rep.  485;  37  L.  ed. 
380;  Van  Brocklin  v.  Tennessee,  117  U.  S.  151;  6  Sup.  Ct.  Rep.  670; 
29  L.  ed.  845. 


CHAPTER  XIX 

MILITARY   AND    PRESIDENTIAL    GOVERNMENT   OF   ACQUIRED 
TERRITORY 

Conquest  or  military  occupation  does  not  operate  to  annex 
territory 

Mere  conquest,  that  is,  the  occupation  by  military  force 
of  foreign  territory,  is  not  sufficient  to  annex  such  terri- 
tory to  the  State  whose  forces  are  in  possession  of  it. 
However,  for  the  time  being,  as  a  belligerent  right,  and 
from  necessity,  the  entire  control  of  this  area,  its  govern- 
ment, and  the  lives  and  property  of  its  inhabitants  are  in 
the  hands  of  the  victorious  power.  The  inhabitants  are 
no  longer  protected  by  the  State  whose  forces  have  been 
ousted,  and  for  the  time  being  owe  no  allegiance  to  it,  but 
owe  an  allegiance  to  the  State  which  is  in  possession.1 

The  government  established  and  maintained  by  'one 
State  in  military  possession  of  territory  of  another,  is, 
of  course,  a  de  facto  one,  but  de  facto  in  a  somewhat  differ- 
ent sense  from  an  insurrectionary  government  established 
as  a  result  of  a  rebellion  or  civil  war.  But  in  either  case 
the  authority  of  the  de  facto  government  is,  to  an  extent 
at  least,  recognized  by  the  de  jure  government.  This  is 
adverted  to  by  the  Supreme  Court  in  Thorington  v. 


1  United  States  v.  Rice,  4  Wh.  246;  4  L.  ed.  562;  Fleming  v.  Page, 
9  How.  603;  13  L.  ed.  276;  Neely  v.  Henkel,  180  U.  S.  109;  21  Sup. 
Ct.  Rep.  302;  45  L.  ed.  448;  DeLima  v.  Bidwell,  182  U.  S.  1;  21  Sup. 
Ct.  Rep.  743;  45  L.  ed.  1041;  Dooley  v.  United  States,  182  U.  S.  222; 
21  Sup.  Ct.  Rep.  762;  45  L.  ed.  1074. 
134 


LAW  OF  THE  UNITED  STATES      ^  135 

Smith  2  in  passing  upon  the  status  of  the  Confederate 
Government  established  during  the  Civil  War. 

In  New  Orleans  v.  New  York  Mail  Steamship  Co.3  was 
considered  the  status  of  territory  of  the  Southern  Con- 
federacy which  had  been  conquered  by  the  Federal  forces. 
The  court  held,  that  the  Federal  forces  in  possession  might 
exercise  the  same  absolute  authority  as  in  the  case  of  ter- 
ritory conquered  from  a  foreign  State. 

Presidential  government 

The  government  maintained  by  the  President  over  a 
conquered  territory,  being  belligerent,  is,  according  to  the 
general  doctrines  of  international  law  regarding  military 
occupation,  absolute  in  character:  "It  may  do  anything 
necessary  to  strengthen  itself  and  weaken  the  enemy. 
There  is  no  limit  to  the  powers  that  may  be  exerted  in  such 
cases,  save  those  which  are  found  in  the  laws  and  usages 
of  war."  4 

It  has  been  seen  from  the  preceding  cases  that  the  power 
of  the  President,  as  Commander-in-Chief  of  the  army  and 
navy,  is  practically  absolute  over  conquered  territory. 
And  also,  as  was  held  in  Cross  v.  Harrison,  that  this  power 
persists  after  the  formal  annexation  of  the  territory  in 
question  to  the  United  States  and  until  Congress  legislates 
for  its  government.  It  would  appear,  however,  that  dur- 
ing this  latter  period,  the  President's  power  is  not  as  ab- 
solute as  in  the  period  prior  to  annexation.  Absolute 
power,  according  to  American  constitutional  doctrines, 
is  only  justified  by  military  necessity,  and,  therefore,  with 
the  cessation  of  hostilities  and  the  annexation  of  the  terri- 
tory by  which  it  is  brought  within  the  general  province 
of  the  American  doctrine,  there  spring  up  certain  limita- 

2  8  Wall.  1;19L.  ed.  361. 

3  20  Wall.  387;  22  L.  ed.  354. 

4  N.  Orleans  v.  N.  Y.  Mail  S.  S.  Co.,  20  Wall.  387;  22  L.  ed.  354 


136  PRINCIPLES  OF  CONSTITUTIONAL  LAW 

tions  upon  the  President's  governing  power.5  The  extent 
of  these  limitations  will  be  discussed  in  a  later  chapter  deal- 
ing with  martial  and  military  law,  and  with  the  doctrines 
laid  down  by  the  Supreme  Court  in  the  "  Insular  Cases" 
determining  the  political  status  and  the  civil  rights  of  the 
inhabitants  of  the  islands  acquired  in  1898  from  Spain. 

*  Dooley  v.  United  States,  182  U.  S.  222;  21  Sup.  Ct.  Rep.  762;  45 
L.  ed.  1074. 


CHAPTER  XX 

ANNEXATION    OF   TERRITORY   BY   TREATY 

Status  of  territory  annexed  by  treaty 

That,  under  the  treaty-making  power  provided  in  the 
Constitution,  a  foreign  country  may  be  brought  under  the 
sovereignty  of  the  United  States,  and  thus,  from  the  point 
of  view  of  international  law,  become  a  part  of  it,  is,  as  we 
have  seen,  beyond  question.  In  De  Lima  v.  Bidwell,1  one 
of  the  " Insular  Cases,"  decided  in  1901,  the  point  was 
urged,  however,  that,  before  such  annexed  territory  can 
become  "domestic"  territory  and  as  such  be  brought,  ipso 
facto,  under  the  operation  of  the  Federal  laws  generally, 
an  act  of  Congress  to  that  effect  is  necessary. 

Prior  to  the  De  Lima  case,  this  question  had  been  sev- 
eral times  raised,  especially  with  reference  to  the  immediate 
applicability  of  the  revenue  laws  of  the  United  States  to 
annexed  territories,  but  had  never  been  thoroughly  dis- 
cussed, nor  had  administrative  practice  and  the  laws  been 
harmonious  with  judicial  pronouncements,  nor  these  ju- 
dicial pronouncements  harmonious  with  one  another. 

In  Fleming  v.  Page,2  decided  in  1850,  it  was  held,  as  has 
been  seen,  that  conquest  and  military  occupation  of  a 
foreign  district  do  not,  ipso  facto,  make  that  district  a  part 
of  the  United  States,  and,  therefore,  that  duties  may 
properly  be  levied  upon  goods  imported  therefrom  into 
the  United  States  under  an  act  of  Congress  imposing  duties 


1 182  U.  S.  1;  21  Sup.  Ct.  Rep.  743;  45  L.  ed.  1041. 
2  9  How.  603;  13  L.  ed.  276. 

137 


138  PRINCIPLES  OF  THE  CONSTITUTIONAL 

upon  imports  from  foreign  countries.  Taney,  however, 
in  his  opinion  went  further  than  the  facts  of  the  case  neces- 
sitated, and  adverted  to  the  circumstance  that  the  ad- 
ministrative department  of  the  government  had,  as  a  rule, 
continued  to  treat  territory  acquired  by  treaty  as  foreign 
until  Congress  by  legislation  had  extended  over  it  its  rev- 
enue laws. 

In  Cross  v.  Harrison,3  however,  decided  in  1853,  it  was 
held  by  a  unanimous  court,  including  Chief  Justice  Taney 
himself,  that  by  the  ratification  of  the  treaty  of  1848  be- 
tween Mexico  and  the  United  States,  California  became 
a  part  of  the  United  States,  and  the  tariff  laws  of  the  United 
States  then  in  force  ipso  facto  applicable  to  it. 

In  De  Lima  v.  Bidwell,4  with  reference  to  the  Island  of 
Porto  Rico,  the  court  held  itself  governed  by  the  doctrine 
declared  in  Cross  v.  Harrison, 

Applying  the  doctrine  of  De  Lima  v.  Bidwell,  the  Su- 
preme Court,  in  another  of  the  Insular  Cases,  Dooley  v. 
United  States,5  held  that  though,  after  the  treaty  of  peace 
providing  for  the  annexation  of  Porto  Rico,  the  military 
government  might  continue  until  Congress  should  pro- 
vide the  island  with  a  civil  government  (according  to  the 
doctrine  of  Cross  v.  Harrison),  the  island  was  no  longer 
"  foreign  territory/'  and,  therefore,  under  the  then  existing 
revenue  laws  of  the  United  States,  providing  for  the  levy- 
ing of  customs  duties  on  goods  imported  from  foreign 
countries,  that  duties  might  not  be  levied  on  importations 
into  the  United  States  from  Porto  Rico,  nor  from  the 
United  States  into  that  island. 


3 16  How.  164;  14  L.  ed.  889. 

4 182  U.  S.  1;  21  Sup.  Ct.  Rep.  743;  45  L.  ed.  1041. 

6 182  U.  S.  222;  21  Sup.  Ct.  Rep.  762;  45  L.  ed.  1074.  See  also 
Jecker  v.  Montgomery,  13  How.  498;  14  L.  ed.  240;  Raymond  v. 
Thomas,  91  U.  S.  712;  23  L.  ed.  434. 


LAW  OF  THE  UNITED  STATES  139 

In  the  case  of  The  Diamond  Rings,6  decided  in  1901,  the 
court  applied  the  doctrine  of  De  Lima  v .  Bidwell  in  fixing 
the  status  of  the  Philippine  Islands  subsequent  to  the 
treaty  of  cession.  The  fact  that  resistance  on  the  part  of 
the  natives  to  the  control  of  the  United  States  continued 
to  be  made,  was  held  to  be  without  weight. 

Presidential  powers 

The  absolute  power  of  Congress  to  determine  the  political 
or  governmental  rights  in  annexed  territories  constitution- 
ally attaches  from  the  moment  that  they  become  subject 
to  the  sovereignty  of  the  United  States.  Until  Congress 
exercises  this  right,  however,  and  provides  them  with  gov- 
ernments and  laws,  they  remain  under  the  control  of  the 
Federal  executive.  This  duty  devolves  upon  the  Presi- 
dent as  a  result  of  his  general  obligation  to  see  that  the 
authority  and  peace  of  the  United  States  are  everywhere 
maintained  throughout  its  territorial  limits.  Thus,  after 
the  treaty  of  peace  with  Spain  in  1899,  Porto  Rico  remained 
under  the  control  of  the  President  until  by  the  act  of 
April  12,  1900,  known  as  the  "Foraker  Act,"  Congress 
provided  a  government  for  that  island.  So  also  it  was  by 
an  exercise  of  the  same  authority  that  the  President,  after 
the  same  treaty  of  cession,  appointed  commissions  for  the 
government  of  the  Philippine  Islands. 

On  March  2,  1901,  Congress  enacted  that  "  All  military, 
civil  and  judicial  powers  necessary  to  govern  the  Philippine 
Islands  .  .  .  shall,  until  otherwise  provided  by  Congress, 
be  vested  in  such  person  or  persons  and  shall  be  exercised 
in  such  manner  as  the  President  of  the  United  States  shall 
direct  for  the  establishment  of  civil  government  and  for 
the  maintaining  and  protecting  of  the  inhabitants  of  said 
islands  in  the  free  enjoyment  of  their  liberty,  property  and 


6 183  U.  S.  170;  22  Sup.  Ct,  Rep.  59;  40  L.  ed.  138. 


140  PRINCIPLES  OF  CONSTITUTIONAL  LAW 

religion."  This  act  changed  the  basis  of  the  Philippine 
government  from  a  presidential  to  a  congressional* one, 
but  did  not  change  its  form,  the  President  being  given  by 
Congress  practically  the  same  powers  that  before  that 
time  he  had  exercised  by  virtue  of  his  position  as  Chief 
Executive. 

By  the  act  of  July  1,  1902,  entitled  "an  act  temporarily 
to  provide  for  the  administration  of  the  affairs  of  civil 
government  in  the  Philippine  Islands,  and  for  other  pur- 
poses," Congress  not  only  approved  and  ratified  the  pre- 
vious acts  of  the  Philippine  Commission,  but  went  on  to 
define  the  general  line  of  action  which  that  body  should 
take,  especially  with  regard  to  the  introduction  of  local 
self-government  as  fast  as  circumstances  should  warrant. 

The  constitutional  source  of  the  power  of  the  United 
States  to  establish  and  maintain  governments  not  an- 
nexed to  itself  but  in  the  possession  of  its  military  forces 
is  derived  both  from  the  power  given  Congress  to  declare 
and  wage  war,  and  from  the  fact  of  its  exclusive  authority 
in  all  that  relates  to  international  affairs,  which  fact,  as  we 
have  seen,  properly  implies  the  right,  in  the  absence  of  ex- 
press prohibitions,  to  exercise  all  the  powers  possessed  by 
sovereign  States  generally. 

From  the  same  source  was  derived  the  power  of  the 
United  States  to  administer  Cuba,  and  to  establish  con- 
sular courts  in  oriental  countries. 


CHAPTER  XXI 

THE  DISTINCTION  BETWEEN    INCORPORATED  AND  UNINCOR- 
PORATED   TERRITORIES 

Limitations  upon  Congress 

The  Constitution  of  the  United  States  contains  a  num- 
ber of  express  limitations  upon  the  Federal  legislative 
power.  In  addition  to  those  contained  in  the  first  ten 
Amendments  relative  to  freedom  of  religion,  speech,  and 
press,  the  quartering  of  troops,  the  right  of  the  people  to 
assemble,  to  petition,  to  keep  and  bear  arms,  to  be  secure 
against  unreasonable  searches  and  seizures,  to  presentment 
or  indictment  by  jury,  to  speedy  trials,  to  juries  in  civil 
suits,  to  immunity  from  excessive  bails  and  fines  and  cruel 
and  unusual  punishments,  etc.,  it  is  elsewhere  provided  in 
the  Constitution  that  all  duties,  imposts,  and  excises  shall 
be  uniform  throughout  the  United  States,  that  the  writ 
of  habeas  corpus  shall  not  be  suspended,  except  under  cer- 
tain specified  circumstances,  that  no  bill  of  attainder  or  ex 
post  facto  law  shall  be  passed,  no  capitation  or  other  direct 
tax  laid  except  in  proportion  to  population,  no  duty  laid 
upon  goods  exported  from  a  State,  no  commercial  prefer- 
ences given  to  the  ports  of  one  State  over  those  of  another, 
no  money  drawn  from  the  treasury  but  in  consequence  of 
an  appropriation  made  by  law,  no  title  of  nobility  granted, 
etc.  The  Thirteenth  Amendment  also  declares  that 
"neither  slavery  or  involuntary  servitude,  except  as  pun- 
ishment for  crime  whereof  the  party  shall  have  been  duly 
convicted,  shall  exist  within  the  United  States,  or  any  place 
subject  to  their  jurisdiction." 

141 


142  PRINCIPLES  OF  THE  CONSTITUTIONAL 

When  legislating  for  the  States  or  for  their  inhabitants 
these  limitations  have  of  course  to  be  observed.  The 
question  whether  the  same  is  true  when  Congress  is  legis- 
lating for  the  Territories  and  their  populations  has  now  to 
be  examined. 

In  the  preceding  chapters  we  have  learned  the  source 
whence  is  derived  the  power  of  Congress  and  of  the  Presi- 
dent to  govern  annexed  territories.  We  have  learned 
that  by  mere  military  occupation  a  territory,  though  for 
the  time  being  subject  to  the  de  facto  control  of  the  Presi- 
dent as  Commander-in-Chief  of  the  army  and  navy,  is  not 
annexed  to  the  United  States,  that  is,  it  does  not  be- 
come permanently  subject  de  jure  as  well  as  de  facto  to 
its  sovereignty.  Only  by  treaty,  or  by  statute,  or  by 
joint  resolution  of  Congress,  may  this  annexation  be 
effected. 

When  thus  annexed,  however,  a  district  may,  according 
to  the  recent  "  Insular  Cases,"  find  itself,  or  by  subsequent 
legislative  action  be  placed,  in  any  one  of  the  following 
categories : 

1.  A  State  of  the  Union. 

2.  A  "  Territory"  incorporated  into  the  Union.     This 
Territory  may  be  either  "unorganized"  or  "organized." 

3.  A  Territory  appurtenant  to,  that  is,  subject  to  the 
sovereignty  of  the  United  States,  but  not  "  incorporated," 
constitutionally  speaking,  into  the  Union  of  States  and 
Territories  for  the  benefit  and  protection  of  whose  in- 
habitants the  Constitution  was  adopted. 

Such  "appurtenant,"  dependent  or  unincorporated  ter- 
ritory is,  of  course,  from  the  international  point  of  view  a 
part  of  the  United  States,  but  is  not,  as  we  shall  see,  a  part 
thereof  in  the  stricter  constitutional  sense  in  which  the 
term  is  used  in  the  Constitution  with  reference  to  certain 
limitations  which  that  instrument  lays  upon  the  legislative 
powers  of  Congress. 


LAW  OF  THE  UNITED  STATES  143 

Distinction  between  incorporated  and  unincorporated  Terri- 
tories ^ 

With  respect  to  the  form  of  government  that  may  be 
established  and  maintained  by  Congress  over  the  Terri- 
tories, there  is  no  distinction  between  an  incorporated  and 
an  unincorporated  Territory.  In  either  case  the  congres- 
sional authority  is  absolute  as  to  whether  local  self- 
governing  powers  will  be  granted  to  their  inhabitants. 
With  respect,  however,  to  the  civil  or  private  rights  of  the 
inhabitants  of  the  Territories,  the  distinction  is  very  im- 
portant. For  if  it  be  that  a  Territory  is  merely  appurte- 
nant to,  but  not  "  incorporated  "  into  the  United  States, 
Congress  in  its  legislation  regarding  it  is  bound  by  but 
few  of  the  limitations  which  apply  in  the  case  of  incorpo- 
rated Territories,  whether  organized  or  unorganized. 

This  distinction  between  incorporated  and  unincorpo- 
rated territory  is  one  that  was  not  clearly  made  until  the 
decision  of  the  Insular  Cases  in  1901.  Furthermore  in- 
deed, it  can  hardly  be  said  to  have  been  known  prior  to 
that  time,  there  had  been  a  number  of  decisions  by  the 
Supreme  Court  which  indicated  that  such  a  distinction 
did  not,  and  could  not,  exist  according  to  the  constitutional 
law  of  the  United  States.  There  were,  however,  on  the 
other  hand,  not  a  few  legislative  and  administrative  pre- 
cedents which  supported  such  a  doctrine;  and  by  rigor- 
ously confining  the  contrary  decisions  of  the  Supreme 
Court  to  the  facts  of  the  cases  in  which  they  were  rendered, 
it  was  found  possible  to  escape  from  their  control,  and  to 
hold  that  the  term  " United  States"  as  used  in  at  least 
some  of  the  clauses  of  the  Constitution,  does  not,  and  was 
not  intended  to,  include  all  districts  subject  to  the  sover- 
eignty of  the  United  States;  and  that  as  to  such  areas 
not  within  the  limits  of  the  "United  States,"  in  this  strict 
constitutional  sense,  Congress,  in  the  exercise  of  its  legis- 
lative powers,  is  not  subject  to  the  limitations  which  rest 


144  PRINCIPLES  OF  THE  CONSTITUTIONAL 

upon  it  when  dealing  with  Territories  which  are  included 
in  the  United  States.1 

The  Insular  Cases 

As  a  result  of  the  Spanish-American  War  the  United 
States  came  into  possession  of  territories  over  which,  be- 
cause of  their  location,  their  economic  and  industrial  status, 
and  especially  the  character  of  their  populations,  it  was 
deemed  expedient  to  give  to  the  Executive  or  to  Congress 
the  freest  possible  discretion  with  reference  not  only  to  the 
manner  in  which  they  should  be  governed,  but  to  the  civil 
rights  that  should  be  granted  their  inhabitants.  The  ques- 
tion whether,  in  dealing  with  these  new  insular  possessions, 
Congress  should  be  held  subject  to  all  those  constitutional 
limitations  which  apply  when  dealing  with  civil  rights  in 
the  States  or  in  the  then  existing  Territories,  thus  became 
a  most  important  one. 

The  form  in  which  this  question  arose  for  judicial  deter- 
mination was  as  to  the  constitutionality  of  that  clause  of 
the  Foraker  Act  establishing  civil  "congressional"  govern- 
ment in  Porto  Rico,  which  provided  a  scale  of  customs 
duties  to  be  paid  upon  goods  brought  into  the  ports  of  the 


1  Chief  among  the  cases,  prior  to  1901,  dealing  with  the  status  of 
Territories,  and  the  civil  rights  of  their  inhabitants  are  the  following: 
Loughborough  v.  Blake,  5  Wh.  317;  5  L.  ed.  98;  American  Insurance 
Co.  v.  Canter,  1  Pet.  511;  7  L.  ed.  242;  Webster  v.  Reid;  11  How.  437; 
13  L.  ed.  761;  Scott  v.  Sandford,  19  How.  393;  15  L.  ed.  691;  Reynolds 
v.  U.  S.,  98  U.  S.  145;  25  L.  ed.  244;  National  Bank  v.  Yankton,  101 
U.  S.  129;  25  L.  ed.  1046;  Murphy  v.  Ramsey,  114  U.  S.  15;  5  Sup. 
Ct.  Rep.  747;  29  L.  ed.  47;  Callan  v.  Wilson,  127  U.  S.  540;  8  Sup. 
Ct.  Rep.  1301;  32  L.  ed.  223;  Mormon  Church  v.  U.  S.,  136  U.  S.  1; 
10  Sup.  Ct.  Rep.  792;  34  L.  ed.  478;  American  Publishing  Co.  v. 
Fisher,  166  U.  S.  464;  17  Sup.  Ct.  Rep.  618;  41  L.  ed.  1079;  Spring- 
ville  v.  Thomas,  166  U.  S.  707;  17  Sup.  Ct.  Rep.  717;  41  L.  ed.  1172; 
Thompson  v.  Utah,  170  U.  S.  343;  18  Sup.  Ct.  Rep.  620;  42  L.  ed. 
1061. 


LAW  OF  THE  UNITED  STATES  145 

United  States  from  the  island.  This  necessarily  involved 
an  answer  to  the  question  whether  the  provision  of  the 
Constitution  that  "all  duties,  imposts  and  excises  shall  be 
uniform  throughout  the  United  States  "  applied  ex  proprio 
vigore  to  Porto  Rico,  or  whether,  having  never  been  form- 
ally "  incorporated  "  by  Congress  into  the  United  States 
either  expressly  or  by  implication,  the  island  was  not  a 
part  of  the  "United  States"  within  the  meaning  of  the 
term  as  used  in  the  constitutional  clause  just  quoted. 

In  Downes  v.  Bidwell 2  five  of  the  nine  justices  of  the 
Supreme  Court  concurred  in  holding  that,  though  by  the 
treaty  of  cession  the  island  of  Porto  Rico  came  under  the 
sovereignty  of  the  United  States,  and  when  viewed  from 
the  standpoint  of  all  other  nations  became  a  part  of  the 
United  States,  it  did  not,  when  looked  at  from  the  point 
of  view  of  its  own  public  law,  become  a  part  of  the  "  United 
States"  as  that  term  is  used  in  the  Constitution. 

Four  of  these  five  justices  were  able  to  reach  this  con- 
clusion: First,  by  making  a  sharp  distinction  between 
"incorporated"  and  "unincorporated"  Territories;  Sec- 
ond, by  holding  that  the  treaty-making  power  though  able 
to  annex  Territories  to  the  United  States,  that  is,  bring 
them  under  its  sovereignty  internationally  speaking,  is  not 
competent  to  incorporate  such  areas  in  the  United  States, 
but  that  for  this  purpose  the  express  or  implied  consent 
of  Congress  is  necessary;  and  Third,  that  Congress  in  legis- 
lating for  unincorporated  Territories  is  not  subject  to 
many  of  the  limitations  which  apply  when  it  is  legislating 
for  the  States  and  incorporated  Territories. 

It  will  be  observed  that  as  far  as  the  general  limitations 
upon  the  legislative  powers  of  Congress  are  concerned, 
these  four  justices  place  the  States  and  the  incorporated 
Territories  in  the  same  class.  Only  the  unincorporated 


2 182  U.  S.  244;  21  Sup.  Ct.  Rep.  770;  45  L.  ed.  1088. 
10 


146  PRINCIPLES  OF*  THE  CONSTITUTIONAL 

Territories  are  by  them  excluded  from  the  protection  of 
such  limitations  as,  for  example,  that  Federal  tax  laws  shall 
be  uniform  throughout  the  United  States.  The  fifth 
Justice,  Brown,  who  concurred  with  these  four,  did  not, 
as  we  shall  see,  make  any  distinction  between  incorporated 
and  unincorporated  Territories,  but  excluded  them  all 
from  the  term  " United  States,"  and  from  the  protection 
of  all  but  the  most  fundamental  of  the  constitutional  lim- 
itations upon  the  powers  of  Congress.  The  constitutional 
rights  which  these  limitations  create,  he  asserted,  do  not 
belong  to  the  citizens  of  any  Territories  until  by  an  act  of 
Congress  they  have  been  extended  to  them.  Thus,  while 
the  four  justices  divide  the  domains  of  the  United  States 
into  the  three  classes  of  States,  Incorporated  Territories 
and  Unincorporated  Territories;  Justice  Brown  recognized 
only  two  categories,  States  and  Territories. 

It  will  have  been  seen  that  the  net  result  of  the  decision 
in  Downes  v.  Bidwell,  whether  we  follow  the  reasoning 
of  Justice  Brown,  or  of  the  four  justices  who  concurred 
in  the  judgment  rendered,  is  that  as  to  Territories  which 
have  not  been  incorporated  into  the  United  States  (or, 
according  to  Justice  Brown,  over  which  the  Constitution 
has  not  been  extended  by  an  act  of  Congress)  Congress  is 
not  limited  by  some  of  the  restrictions  enumerated  or  im- 
plied in  the  Constitution.  Just  which  of  these  limitations 
do  not,  in  such  cases,  control  Congress,  it  remains  for  the 
Supreme  Court  to  determine  in  each  particular  case  as  the 
point  arises. 

In  Downes  v.  Bidwell  it  was  held  that  the  restriction  that 
"all  duties,  excises  and  imposts  shall  be  uniform  through- 
out the  United  States  "  does  not  apply. 

Hawaii 

In  Hawaii  v.  Mankichi 3  it  was  held  that  the  provisions 

3 190  U.  S.  197;  23  Sup.  Ct.  Rep.  787;  47  L.  ed.  1016. 


LAW  OF  THE  UNITED  STATES  147 

of  the  Fifth  and  Sixth  Amendments  with  reference  to  in- 
dictment by  a  grand  jury  and  trial  by  petit  jury,  also  did 
not  apply,  The  facts  and  questions  of  law  involved  in 
this  case  were  these.  The  Joint  Resolution  of  Congress 
of  July  7,  1898,  had  provided  for  the  annexation  of  the 
Hawaiian  Islands  "as  a  part  of  the  territory  of  the  United 
States,  and  subject  to  the  sovereign  dominion  thereof." 
The  Resolution,  indeed,  expressly  declared  that  "The 
municipal  legislation  of  the  Hawaiian  Islands  .  .  .  not 
inconsistent  with  this  Joint  Resolution,  nor  contrary  to 
the  Constitution  of  the  United  States,  nor  to  any  existing 
treaty  of  the  United  States,  shall  remain  in  force  until  the 
Congress  of  the  United  States  shall  otherwise  determine." 
After  the  annexation  to  the  United  States,  Congress  not 
having  determined  otherwise,  the  defendant  in  error, 
Mankichi,  was  tried  for  and  convicted  of  manslaughter 
according  to  the  usual  course  of  procedure  in  force  in  the 
Republic  of  Hawaii  prior  to  July  7,  1898,  which  course 
of  procedure  did  not  require  the  indictment  to  be  found 
by  a  grand  jury,  and  which  permitted  a  less  number  than 
the  entire  twelve  of  the  petit  jury  to  convict.  An  applica- 
tion for  a  writ  of  habeas  corpus  having  been  made  by 
Mankichi  upon  the  ground  that,  according  to  the  Constitu- 
tion of  the  United  States,  no  one  might  be  tried  for  man- 
slaughter except  upon  an  indictment  or  presentment  found 
by  a  grand  jury,  and  the  case  having  been  appealed  to  the 
Supreme  Court  of  the  United  States,  that  tribunal  was 
called  upon  to  determine :  first,  whether  it  was  the  intention 
and  the  necessary  effect  of  the  annexing  Joint  Resolution 
to  make  these  constitutional  provisions  immediately  ap- 
plicable to  the  islands;  and  secondly,  if  it  did  not,  whether 
it  lay  within  the  power  of  Congress  or  of  the  authorities 
of  Hawaii  to  deny  to  the  accused  the  rights  in  question. 
The  court  answered  the  first  question  in  the  negative, 
and  the  second  in  the  affirmative. 


148  PRINCIPLES  OF  THE  CONSTITUTIONAL 

Alaska 

In  Rassmussen  v.  United  States,4  decided  in  1905,  it  was 
held  that  Alaska  had  been  incorporated  into  the  United 
States,  and,  therefore,  that  the  inhabitants  were  entitled 
to  jury  trial.  The  court  did  not,  however,  attempt  to  lay 
down  any  definite  rule  for  determining  when  incorporation 
has  taken  place,  but  contented  itself  with  quoting  certain 
sentences  from  the  opinion  in  Dorr  v.  United  States,5  and 
holding  that  the  treaty  by  which  Alaska  had  been  ac- 
quired, and  the  legislation  of  Congress  subsequent  thereto, 
did  not  bring  that  Territory  within  the  category  of  un- 
incorporated Territories  according  to  the  test  implied  in 
the  sentences  quoted.  This  Rassmussen  case  is,  however, 
significant,  in  that  it  exhibits  the  definite  adherence  of  the 
court  to  the  doctrine  of  the  distinction  between  incorpo- 
rated and  unincorporated  Territories. 

In  this  Rassmussen  case  the  attempt  had  been  made  to 
maintain  the  doctrine  that,  even  if  incorporated,  Alaska 
was  not  entitled  to  the  right  in  question  for  the  reason  that 
it  had  not  been  made  an  "organized"  Territory.  This 
contention,  however,  the  court  held  clearly  unsound.  In- 
corporation and  not  organization,  it  was  declared,  is  the 
test  as  to  the  general  applicability  of  the  Constitution. 
Justice  Brown  concurred,  but,  as  might  have  been  expected 
from  his  position  in  Downes  v.  Bidwell,  held  that  the  gen- 
eral applicability  of  the  Constitution  depended  not  upon 
the  fact  of  incorporation,  but  upon  whether  Congress  had 
by  some  expression  of  its  will  clearly  shown  that  it  in- 
tended that  the  particular  provision  of  the  Constitution 
should  apply. 

That  the  Thirteenth  Amendment  forbidding  slavery 
and  involuntary  servitude  except  as  punishment  for  crime 


4 197  U.  S.  516;  25  Sup.  Ct.  Rep.  514;  49  L.  ed.  862. 
6 195  U.  S.  138;  24  Sup.  Ct.  Rep.  808;  49  L.  ed.  128. 


LAW  OF  THE  UNITED  STATES  149 

applies  in  the  unincorporated  as  well  as  the  incorporated 
Territories,  is  clear,  its  language  expressly  extending  its 
force  not  only  to  the  United  States  but  to  "  any  place 
subject  to  their  jurisdiction."  Certain  forms  of  slavery 
do,  however,  undoubtedly  exist  in  some  of  the  Philippine 
Islands,  but  there  is  of  course  no  legality  in  this,  and  as 
soon  as  possible,  the  custom  or  practice  will  be  sup- 
pressed, if,  indeed,  it  has  not  already  been  suppressed.6 

6  For  other  recent  adjudications  with  reference  to  the  Territories, 
see  Binns  v.  United  States,  194  U.  S.  486;  24  Sup.  Ct.  Rep.  816;  48 
L.  ed.  1087;  Kepner  v.  United  States,  195  U.  S.  100;  24  Sup.  Ct.  Rep. 
797;  49  L.  ed.  114;  Goetze  v.  United  States,  182  U.  S.  221;  21  Sup. 
Ct.  Rep.  742;  45  L.  ed.  1065;  Dooley  v.  United  States,  183  U.  S.  151; 
22  Sup.  Ct.  Rep.  62;  43  L.  ed.  128;  Warner,  Barnes  &  Co.  v.  United 
States,  197  U.  S.  419;  25  Sup.  Ct.  Rep.  455;  49  L.  ed.  816. 


CHAPTER  XXII 

CITIZENSHIP   IN    THE   TERRITORIES 

Effect  of  cession 

Whether  or  not  inhabitants  of  territories  ceded  by  one 
nation  to  another  necessarily  have,  according  to  the  princi- 
ples of  international  law,  the  option  of  becoming  citizens 
of  the  annexing  State,  or  retaining  their  old  citizenship,. is 
a  point  upon  which  international  law  writers  do  not  seem 
to  be  fully  agreed.  That,  in  the  absence  of  treaty  stipu- 
lation to  the  contrary,  the  citizenship  of  the  inhabitants 
of  ceded  territory  is  to  be  that  of  the  annexing  state,  is, 
however,  generally  admitted  by  American  international 
law  writers,  and  has  been  more  than  once  declared  by 
the  United  States  Supreme  Court.1 

Treaty  provisions 

In  all  the  treaties  entered  into  by  the  United  States 
whereby  territory  was  acquired,  prior  to  that  with  Spain 
in  1898,  it  was  provided  either  that  the  inhabitants  of  the 
ceded  territories  remaining  therein  should  be  admitted  as 
soon  as  possible  to  the  enjoyment  of  all  the  rights,  ad- 
vantages and  immunities  of  citizens  of  the  United  States, 
or  that  they  should  be  "  incorporated  in  theJJnion  of  the 
United  States/'  or  both.  It  cannot,  however,  be  said  with 
certainty,  as  has  been  maintained  by  some,  that  it  was  due 
to  these  provisions  that  the  inhabitants  of  the  ceded  terri- 


1  American  Insurance  Co.  v.  Canter,  1  Pet.  511;  7  L.  ed.  242; 
Boyd  v.  Nebraska,  143  U.  S.  135;  12  Sup.  Ct.  Rep.  375;  36  L.  ed.  103. 
150 


LAW  OF  THE  UNITED  STATES  151 

tories  were  collectively  naturalized,  for  this  point  has  never 
been  squarely  passed  upon  by  the  Supreme  Court.  .  The 
undoubted  purpose  and  the  probable  legal  effect  of  these 
provisions  was  only  to  create  an  obligation  on  the  part  of 
the  United  States  not  to  discriminate  civilly  against  these 
people,  and,  when  the  conditions  should  warrant,  to  con- 
fer upon  them  full  political  privileges.  The  determination 
when  this  time  had  arrived  was  left  to  the  discretion  of 
Congress.  Provisions  similar  to  those  of  which  we  have 
been  speaking  are  almost  always  inserted  by  all  nations 
in  treaties  of  cession  at  the  instance  of  the  ceding  power, 
as  a  matter  of  equity,  it  being  but  just  that  in  handing 
over  to  the  control  of  another  power  citizens  of  its  own, 
a  State  should,  as  far  as  possible,  obtain  a  guarantee  that 
they  should  not  be  civilly  or  politically  oppressed. 

By  these  treaties  of  cession  entered  into  by  the  United 
States,  the  inhabitants  of  the  ceded  territories  did  become, 
however,  United  States  citizens  under  the  general  rule 
quoted  above,  because  those  treaties  contained  no  stipu- 
lations to  the  contrary. 

In  the  treaty  of  peace  with  Spain  which  provided  for 
the  cession  to  the  United  States  of  Porto  Rico,  Guam  and 
the  Philippines,  we  find  for  the  first  time  appearing  a  pro- 
vision expressly  asserting,  that  the  cession  of  the  islands 
is  not  to  operate  as  a  naturalization  of  their  native  in- 
habitants, but  that  the  determination-  of  their  civil  rights, 
and  political  status,  is  to  be  left  to  the  subsequent  judg- 
ment of  Congress.  Spanish  subjects,  natives  of  the  Ibe- 
rian Peninsula,  but  resident  in  the  islands,  are,  however, 
given  the  right  to  elect  whether  or  not  they  will  retain 
their  old  citizenship  or  become  American  subjects. 

In  the  Insular  Cases  it  was  held  that  the  islands  ob- 
tained from  Spain  have  not  been  incorporated  in  the 
"United  States."  Their  inhabitants  have  not  been  natu- 
ralized by  statute,  and  the  treaty  with  Spain  expressly 


152  PRINCIPLES  OF  THE  CONSTITUTIONAL 

.refuses  them  citizenship.  The  whole  question  of  their 
civil  status  thus  depends  upon  whether  or  not  they  are 
citizens  according  to  the  provision  of  the  Fourteenth 
Amendment,  which  declares  that  "all  persons  born  or 
naturalized  in  the  United  States,  and  subject  to  the  juris- 
diction thereof,  are  citizens  of  the  United  States  and  of  the 
State  wherein  they  reside."  That  is  to  say,  it  will  depend 
upon  whether  the  term  "  United  States,"  as  here  employed, 
will  be  construed  to  include  or  exclude  "  unincorporated  " 
Territories. 

As  has  been  said,  this  question  has  not  been  passed  upon 
precisely,  by  the  Supreme  Court,  but  the  positions  taken 
in  the  Insular  Cases  would  indicate  that  inhabitants  of 
these  insular  possessions,  though  subject  to  the  sovereignty 
of,  and  owing  allegiance  to,  the  United  States,  are  not  citi- 
zens within  the  strict  constitutional  sense.  Certainly  by 
the  executive  and  legislative  departments  of  the  National 
Government  the  position  has  been  taken  that  they  are  not. 

Statutory  provisions 

The  citizens  of  Hawaii  have  been  made  citizens  of  the 
United  States  by  statute  enacted  April  30,  1900. 

The  act  of  June  14,  1902,  provides  that  no  passport  shall 
be  granted  or  issued  to,  or  verified  for,  any  other  persons 
than  those  owing  allegiance,  whether  citizens  or  not,  to  the 
United  States.  Under  this  provision  passports  are  now 
issued  to  citizens  of  Porto  Rico  and  of  the  Philippines. 

By  the  act  of  Congress  of  July,  1902,  providing  for  the 
administration  of  civil  government  in  the  Philippine  Is- 
lands all  inhabitants  thereof,  continuing  to  reside  there 
who  were  Spanish  subjects  at  the  time  of  the  cession  of  the 
islands  to  the  United  States,  and  their  children  born  sub- 
sequent thereto,  and  who  have  not  elected  to  preserve 
their  Spanish  allegiance,  are  described  as  "citizens  of  the 
Philippine  Islands."  So  similarly,  in  the  act  of  April  12, 


LAW  OF  THE  UNITED  STATES  153 

1900,  establishing  a  civil  government  in  Porto  Rico,  the 
phrase  "  citizens  of  Porto  Rico  "  is  employed,  and  the 
designation  "  citizens  of  the  United  States  "  avoided.  And 
in  the  naturalization  act  of  June  29,  1906,  provision  is 
made  (§  30)  for  the  naturalization,  under  certain  circum- 
stances, of  "  persons  not  citizens  who  owe  permanent  alle- 
giance to  the  United  States." 

In  Gonzales  v.  Williams  2  it  was  held  that  a  native  of 
Porto  Rico  who  was  an  inhabitant  of  that  island  at  the 
time  of  its  cession  to  the  United  States  is  not  an  " alien" 
within  the  meaning  of  the  act  of  Congress  of  March  3, 1891, 
providing  for  the  detention  and  deportation  of  alien  immi- 
grants likely  to  become  public  charges.  No  position  is 
taken  by  the  court,  however,  with  reference  to  the  question 
of  citizenship. 

2 192  U.  S.  1;  24  Sup.  Ct.  Rep.  171;  48  L.  ed.  317. 


CHAPTER  XXIII 
FOREIGN  RELATIONS:  THE  TREATY  POWER 

Federal  powers  exclusive 

The  exclusiveness  of  the  Federal  jurisdiction  in  all  that 
concerns  foreign  affairs  is  deducible  both  from  the  national 
character  of  the  General  Government,  and  from  the  ex- 
press provisions  of  the  Constitution. 

The  States  are  expressly  forbidden  to  "  enter  into  any 
treaty,  alliance  or  confederation,"  "  to  grant  letters  of 
marque  and  reprisal,"  or,  unless  Congress  consents,  to 
"  lay  any  duty  of  tonnage,  keep  troops  or  ships  of  war,  in 
time  of  peace,  enter  into  any  agreement  or  compact  with 
another  State,  or  with  a  foreign  power,  or  engage  in  war 
unless  actually  invaded,  or  in  such  imminent  danger  as 
will  admit  of  no  delay." 

Upon  the  other  hand,  the  General  Government  is  ex- 
pressly empowered  "  to  provide  for  the  common  defense 
and  general  welfare  of  the  United  States;"  "to  regulate 
commerce  with  foreign  nations;"  "to  make  treaties;"  "to 
establish  an  uniform  rule  of  naturalization;"  "to  define 
and  punish  piracies  and  felonies  committed  on  the  high 
seas,  and  offenses  against  the  law  of  nations;"  "  to  declare 
war,  grant  letters  of  marque  and  reprisal,  and  make  rules 
concerning  captures  on  land  or  water;"  "  to  raise  and  sup- 
port armies;"  "to  provide  and  maintain  a  navy;"  ".to 
makes  rules  for  the  government  and  regulation  of  the  land 
and  naval  forces;"  "to  provide  for  the  calling  forth  the 
militia  to  ...  repel  invasions;"  "to  appoint  ambassa- 
dors and  other  public  ministers  and  consuls;"  to  adjudicate 
causes  arising  under,  treaties,  and  all  cases  affecting  am- 
154 


LAW  OF  THE  UNITED  STATES  155 

bassadors,  other  public  ministers  and  consuls,  cases  of 
admiralty  and  maritime  jurisdiction,  and  case's  between  a 
State,  or  the  citizens  thereof,  and  foreign  States,  citizens 
and  subjects.  Finally,  it  is  declared  that:  "This  Constir 
tution,  and  the  laws  of  the  United  States  that  shall  be 
made  in  pursuance  thereof;  and  all  the  treaties  made,  or 
which  shall  be  made,  under  the  authority  of  the  United 
States,  shall  be  the  supreme  law  of  the  land;  and  the  judges 
in  every  State  shall  be  bound  thereby;  anything  in  the 
Constitution  or  the  laws  of  any  State  to  the  contrary  not- 
withstanding." 

From  these  express  grants  of  power  to  the  General  Gov- 
ernment, and  prohibitions  of  treaty  powers  to  the  States, 
the  intention  of  the  framers  of  the  Constitution  to  invest 
the  Federal  Government  with  the  exclusive  control  of 
foreign  affairs  is  readily  deducible. 

Federal  powers  comprehensive 

The  control  of  international  relations  vested  in  the 
General  Government  is  not  only  exclusive,  but  all- 
comprehensive.  That  is  to  say,  the  authority  of  the  United 
States  in  its  dealings  with  foreign  powers  includes  not  only 
those  powers  which  the  Constitution  specifically  grants  it, 
but  all  those  powers  which  sovereign  States  in  general  pos- 
sess with  regard  to  matters  of  international  concern.  This 
general  authority  in  the  United  States  is  fairly  deducible 
from  the  fact  that  in  its  dealings  with  other  States  the 
United  States  appears  as  the  sole  representative  of  the 
American  people;  that  upon  it  rests,  therefore,  the  obli- 
gation to  perform  all  the  duties  which  international  law 
imposes  upon  a  sovereign  State;  and  that,  therefore,  hav- 
ing those  duties  to  perform  it  is  to  be  presumed  to  have 
commensurate  powers.1 

1  The  comprehensive  character  of  the  powers  of  the  National 
Government  with  reference  to  foreign  affairs  has  been  especially 


156  PRINCIPLES  OF  THE  CONSTITUTIONAL 

The  reasoning  of  the  court  in  maintenance  of  the  princi- 
ple that  in  all  that  concerns  foreign  relations  the  United 
States  has  the  same  plenitude  of  constitutional  power  as 
that  possessed  by  other  sovereign  States  is  sound.  An 
appeal,  however,  to  the  fact  of  "national  sovereignty"  as 
a  source  of  Federal  power  is  not  a  valid  one  outside  of  the 
international  field.  It  cannot  properly  be  resorted  to 
when  recognition  of  an  international  obligation  on  the 
part  of  the  United  States  is  not  involved,  and  when,  there- 
fore, the  matter  is  purely  one  relating  to  the  reserved  pow- 
ers of  the  States  or  to  the  private  rights  of  the  individuals. 
To  permit  the  doctrine  to  apply  within  these  fields  would 
at  once  render  the  Federal  Government  one  of  unlimited 
powers. 

The  manner  of  exercise  of  the  treaty-making  power 

The  Constitution  provides  that  the  President  "  shall 
have  power,  by  and  with  the  advice  and  consent  of  the 
Senate,  to  make  treaties,  provided  two-thirds  of  the  Sen- 
ators present  concur." 

With  respect  to  the  manner  in  which  treaty-making  is, 
according  to  the  Constitution,  to  be  conducted,  the  first 
question  that  arises  is  as  to  the  extent  to  which  the  Senate 
may  properly  participate  not  only  in  the  ratification,  but 
in  the  preliminary  negotiation  of  international  agree- 
ments. 

In  the  same  clause,  indeed  in  the  same  sentence,  of  th,3 


asserted  in  a  line  of  cases  dealing  with  the  exclusion  from  the  United 
States  of  undesirable  aliens  and  especially  of  the  Chinese.  See 
Chinese  Exclusion  Cases,  130  U.  S.  581;  9  Sup.  Ct.  Rep.  623;  32  Lu 
ed.  1068;  Ekiu  v.  United  States,  142  U.  S.  651;  12  Sup.  Ct.  Rep.  336; 
35  L.  ed.  1146;  Fong  Yue  Ting  v.  United  States,  149  U.  S.  698;  13 
Sup.  Ct.  Rep.  1016;  37  L.  ed.  905.  See,  also,  United  States  v.  Jones, 
109  U.  S.  513;  3  Sup.  Ct.  Rep.  346;  27  L.  ed.  1015,  as  to  the  con- 
stitutional authority  of  Congress  to  provide  for  the  occupation  and 
annexation  of  the  Guano  Islands. 


LAW  OF  THE  UNITED  STATES  157 

Constitution  in  which  provision  is  made  for  entering  into 
treaties,  it  is  provided  that  the  President  "shall  nominate 
and  by  and  with  the  advice  of  the  Senate  shall  appoint 
ambassadors,  other  public  ministers  and  consuls,"  etc. 
Here  the  phraseology  shows  that  the  act  of  nominating 
the  public  officials  mentioned,  is  clearly  distinguished  from 
their  appointment.  They  are  to  be  nominated  by  the 
President,  but  are  to  be  appointed  by  the  Senate  and 
President.  The  negotiating  of  treaties  is  not,  however, 
by  the  phraseology  of  the  treaty  clause  thus  sharply  dis- 
tinguished from  their  ratification  as  regards  the  Federal 
organs  by  which  this  negotiation  and  ratification  are  to 
be  performed.  The  language  is  that  the  President  "shall 
have  power,  by  and  with  the  advice  and  consent  of  the 
Senate,  to  make  treaties,"  not  that  "  he  shall  negotiate, 
and,  with  the  consent  of  the  Senate,  ratify  treaties." 

As  further  indicative  of  an  intended  participation  of  the 
Senate  in  the  negotiation  of  treaties,  is  the  fact  that  in  the 
Convention,  until  almost  the  last  moment,  it  was  agreed 
that  the  treaty-making  power  should  be  vested  exclusively 
in  the  Senate,  a  body  the  membership  of  which  it  was 
thought  at  that  time  would  remain  comparatively  small. 

Negotiation  of  treaties 

Actual  practice  exhibits  frequent  instances  in  which 
the  Senate  has  participated  in  the  negotiation  of  treaties, 
particularly  during  the  first  years  under  the  Constitution 
when  the  relations  between  the  President  and  the  Senate 
were  especially  close.  After  the  first  years  under  the  Con- 
stitution, however,  the  practice  on  the  part  of  the  President 
of  consulting  the  Senate  with  regard  to  the  treaties  to  be 
negotiated,  became  an  infrequent  one,  but  yet  not  one 
wholly  obsolete.2 

2  See  article  in  Scribner's  Magazine,  Jan.,  1902,  by  Sen.  Lodge, 
entitled  "The  Treaty-Making  Power." 


158  PRINCIPLES  OF  THE  CONSTITUTIONAL 

In  a  number  of  cases  the  Senate  has  by  resolution  sug- 
gested to  the  President  that  certain  negotiations  be  initi- 
ated. Thus  in  1835  the  Senate  requested  the  President 
to  open  negotiations  with  the  Central  American  govern- 
ments with  a  view  to  securing  treaties  granting  protection 
to  such  individuals  as  might  undertake  the  construction 
of  an  interoceanic  canal.  In  1888  President  Cleveland 
was  requested  by  the  Senate  to  open  negotiations  with 
China  for  the  regulation  of  immigration  of  subjects  of 
that  country  into  the  United  States.  In  1880,-  by  a  con- 
current resolution,  the  Senate  and  House  of  Representa- 
tives requested  the  Executive  to  seek  the  co-operation  of 
other  powers  in  providing  for  the  amicable  settlement  by 
arbitration  of  disputes  which  could  not  be  settled  through 
the  ordinary  diplomatic  channels.  By  an  act  of  Congress, 
the  President  was,  in  1902,  advised  and  authorized  to 
enter  into  certain  treaty  arrangements  with  reference  to 
the  construction  of  an  interoceanic  canal. 

All  of  the  instances  cited  above,  are,  however,  by  way  of 
general  exception  to  the  rule  that  the  negotiation  of 
treaties  is  in  the  hands  of  the  President.  The  Senate's 
function,  so  far  at  least  as  its  formal  action  is  concerned, 
is  limited  to  the  disapproval  or  ratification,  with  or  with- 
out amendments,  of  the  treaties  after  they  have  been 
agreed  upon  by  the  President  and  the  chancellaries  of  the 
foreign  countries  concerned. 

Though,  as  has  just  been  said,  the  formal  participation 
of  the  Senate  as  a  body  in  the  negotiation  of  treaties  is  not 
often  now  solicited,  that  body  is,  as  a  matter  of  fact,  ac- 
cording to  modern  usage,  frequently,  indeed,  it  might  be 
said,  generally,  kept  well  informed  as  to  the  progress  of 
international  negotiations  by  means  of  personal  interviews 
between  the  Executive  and  prominent  Senators,  especially, 
of  course,  those  serving  upon  the  Committee  on  Foreign 
Affairs.  In  1898  three  of  the  five  Commissioners  ap- 


LAW  OF  THE  UNITED  STATES  159 

pointed  to  negotiate  the  Treaty  of  Peace  with  Spain  were 
Senators  and  members  of  this  Committee. 

The  recognition  by  the  United  States  of  a  status  of 
belligerency,  and  the  recognition  of  the  sovereignty  and  in- 
dependence of  a  foreign  government  are  political  acts,  not 
subject  to  judicial  review,  and  are  performed  by  the  Presi- 
dent. At  times  the  claim  has  been  made  that  this  power 
of  recognition  is  one  to  be  exercised  at  the  dictation  of 
Congress,  but  precedents  are  against  the  claim.  It  is  to  be 
presumed,  however,  that  when  the  recognition  of  a  status 
of  belligerency  or  of  the  independence  of  a  revolutionary 
government  is  likely  to  constitute  a  casus  belli  with  some 
other  foreign  power,  the  President  will  be  guided  in  large 
measure  by  the  wishes  of  the  legislative  branch.  Upon 
the  other  hand,  it  is  the  proper  province  of  the  Executive 
to  refuse  to  be  guided  by  a  resolution  on  the  part  of  the 
legislature  if,  in  his  judgment,  to  do  so  would  be  unwise. 
The  legislature  may  express  its  wishes  or  opinions,  but  may 
not  command. 

The  power  of  the  Senate  to  amend  treaties 

There  would  seem  to  be  no  question  that,  having  the 
power  either  to  approve  or  disapprove  an  international 
agreement  negotiated  by  the  President,  the  Senate  has 
also  the  power,  when  disapproving  a  proposed  treaty,  to 
state  upon  what  conditions  it  will  approve;  in  other  words, 
to  amend  any  treaty  submitted  to  it.  Upon  the  other 
hand,  it  is  equally  within  the  province  of  the  Executive 
to  consider  the  amendment  of  a  treaty  by  the  Senate  as 
a  rejection  of  it.  When,  therefore,  a  treaty  has  been 
amended  in  the  Senate,  it  is  within  the  President's  power 
to  abandon  the  whole  treaty  project,  or  to  reopen  nego- 
tiations with  the  foreign  country  or  countries  concerned 
with  a  view  to  obtaining  their  consent  to  the  changes  de- 
sired by  the  Senate,  or,  finally,  to  begin  de  novo  and  at- 


160  PRINCIPLES  OF  THE  CONSTITUTIONAL 

tempt  to  negotiate  an  entirely  new  treaty,  which  he  may 
hope  will  secure  senatorial  approval.  In  case  he  decides 
to  follow  the  second  of  these  courses,  namely,  to  secure 
the  approval  of  the  foreign  country  or  countries  to  the 
amendments  to  the  treaty  project  made  in  the  Senate, 
and  is  successful  in  this,  it  would  seem  that  the  treaty 
need  not  be  again  submitted  to  that  body  for  its  approval, 
but  may  be  at  once  promulgated.3  ' 

The  approval  of  the  Senate  being  essential  to  all  treaties 
entered  into  by  the  United  States,  it  has  been  held  that  all 
protocols,  and  explanations  given  by  the  Executive  as  to 
the  meaning  of  treaty  provisions,  which  have  not  been 
passed  upon  and  approved  by  the  Senate,  are  not  to  be  con- 
sidered as  internationally  binding  upon  the  United  States, 
or  enforced  in  its  courts.  For  this  reason  it  is  not  consti- 
tutional for  the  President  to  insert  in  a  treaty  secret  pro- 
visions which  have  not  been  approved  by  the  Senate. 
Most  of  the  written  Constitutions  of  foreign  powers  have 
specific  prohibitions  with  reference  to  secret  provisions. 

After  a  treaty  has  been  signed  by  the  commissioners 
appointed  to  negotiate  it,  or  agreed  upon  by  the  de- 
partments of  State  of  the  countries  concerned,  there  is  no 
constitutional  obligation  upon  the  President  to  submit  it 
to  the  Senate,  and,  even  after  submission  to  that  body,  he 
may  withdraw  it,  as  for  instance  was  done  by  President 
Cleveland  with  reference  to  a  reciprocity  treaty  with 
Spain  which  had  been  sent  to  the  Senate  in  1884  by  Presi- 
dent Arthur.  In  a  like  manner  the  Hawaiian  Annexation 
treaty  of  1893,  and  the  Nicaraguan  Canal  Convention  of 
1884  were  withdrawn  for  "re-examination"  after  having 
been  sent  to  the  Senate. 


3  See  Crandall,  Treaties:  Their  Making  and  Enforcement,  pp.  68 
et  seq.  In  Haver  v.  Yaker,  9  Wall.  32;  19  L.  ed.  571,  the  court 
recognizes  the  right  of  the  Senate  to  amend  projects  of  treaties. 


LAW  OF  THE  UNITED  STATES  161 

Even  after  being  favorably  acted  upon  by  the  Senate, 
it  would  appear  that,  under  certain  circumstances,  the 
President  may  refuse  to  ratify  a  treaty.  Thus,  in  1888, 
when  China  proposed  certain  changes  in  an  agreement 
with  this  country  which  had  already  been  approved  by 
the  Senate,  the  President  abandoned  the  entire  project. 

International  agreements  not  requiring  submission  to  the 
Senate 

Not  all  agreements  entered  into  by  the  United  States 
with  foreign  powers  are  held  to  be  treaties  in  the  sense  in 
which  that  term  is  used  in  the  treaty  clause  of  the  Constitu- 
tion. Such  agreements  as  are  held  not  to  be  treaties  in 
this  sense,  it  has  been  the  practice  of  the  President,  acting 
in  pursuance  of  his  general  powers  as  Chief  Executive  or 
as  authorized  by  congressional  statute,  to  enter  into  and 
promulgate  without  submission  to  the  Senate.  Further- 
more, in  not  a  few  instances  the  Senate  has  itself  expressly 
conferred  upon  the  President  the  power  to  contract  with 
foreign  powers  with  reference  to  specified  matters.4 

International  correspondence  is  exclusively  in  the  hands 
of  the  President,  or  his  agent,  the  Secretary  of  State. 
Hence  it  is  improper  for  any  international  documents  to 
be  addressed  to,  or  sent  directly  to  the  Senate,  or  for  any 
attempt  to  be  made,  in  any  way,  by  an  agent  of  a  foreign 
power  to  influence  directly  the  action  of  the  Senate  upon 
a  treaty  that  is  pending  before  it  or  is  later  to  be  sent  to  it 
for  its  action  thereupon.  Upon  the  other  hand,  it  is,  of 
course,  improper  for  the  Senate  or  any  other  organ  of  the 


4  See  pamphlet,  reprinted  from  the  Yale  Review  by  J.  F.  Barnett, 
entitled  "International  Agreements  Without  the  Advice  and  Consent 
of  the  Senate;"  article  by  J.  B.  Moore  in  the  Political  Science  Quar- 
terly, Sept.,  1905,  entitled  "Treaties  and  Executive  Agreements"; 
and  article  by  C.  C.  Hyde  in  Greertbag,  April,  1905,  entitled  "Agree- 
ments of  the  United  States  other  than  Treaties." 
11 


162  PRINCIPLES  OF  THE  CONSTITUTIONAL 

Federal  Government,  by  resolution  or  otherwise,  to  at- 
tempt to  communicate  with  a  foreign  power  except  through 
the  President.  Thus,  when  in  1877  Congress  passed  two 
joint  resolutions  congratulating  the  Argentine  Republic 
and  the  Republic  of  Pretoria  upon  their  having  established 
a  republican  form  of  government,  and  directing,  in  the  one 
case,  the  Secretary  of  State  to  acknowledge  the  receipt 
of  a  dispatch  from  Argentine,  and  in  the  other  to  com- 
municate with  Pretoria,  the  President  vetoed  both  resolu- 
tions. 

By  virtue  of  the  power  exclusively  vested  in  him  to 
conduct  diplomatic  negotiations  between  this  and  a  for- 
eign country,  the  President  has,  since  early  years,  entered 
into  numerous  agreements  with  foreign  chancellaries  for 
the  settlement  of  claims  made  by  private  American  citi- 
zens against  foreign  governments.  In  a  considerable 
number  of  cases  these  claims  have  been  settled  by  means 
of  arbitrations  agreed  upon  between  the  foreign  offices 
concurred. 

In  no  case  has  the  President  attempted,  without  con- 
sulting the  Senate,  to  adjust  finally  claims  brought  by 
foreigners  against  the  United  States.  In  no  case,  also, 
has  the  President,  by  executive  action,  attempted  the 
settlement  of  claims  set  up  by  the  United  States  in  its 
own  behalf. 

The  constitutional  authority  of  the  President,  without 
consulting  the  Senate,  to  enter  into  protocols  of  agreement 
as  the  basis  for  treaties  to  be  negotiated,  is  beyond  ques- 
tion, and  has  repeatedly  been  exercised  without  demur 
from  the  Senate. 

As  the  term  indicates,  a  modus  vivendi  is  a  temporary 
arrangement  entered  into  for  the  purpose  of  regulating 
a  matter  of  conflicting  interests,  until  a  more  definite  and 
permanent  arrangement  can  be  obtained  in  treaty  form. 
Continued  and  unquestioned  practice  supports  the  doc- 


LAW  OP  THE  UNITED  STATES  163 

trine  that  these  modi  vivendi  may  be  entered  into  by  the 
President  without  consulting  the  Senate.5 

In  the  exercise  of  his  powers  as '  Commander-in-Chief 
of  the  army  and  navy  the  President  of  the  United  States, 
from  both  necessity  and  convenience,  is  often  called  upon 
to  enter  into  arrangements  which  are  of  an  interna- 
tional character.  These  conventions  do  not  require  the 
approval  of  the  Senate.  A  conspicuous  example  of  inter- 
national agreements  thus  entered  into  is  the  protocol  signed 
at  Pekin  in  1901.  All  protocols  of  agreement  entered  into 
for  the  purpose  of  furnishing  a  basis  for  treaties  of  peace, 
as  for  example,  the  Protocol  of  1898  with  Spain,  come 
under  this  head.  So  do  all  conventions  providing  in  time 
of  war  for  an  armistice,  or  the  exchange  of  prisoners,  etc. 

The  President's  military  powers  exist  in  times  of  peace 
as  well  as  during  war.  And  thus,  in  1817,  the  President, 
without  obtaining  the  advice  and  consent  of  the  Senate, 
was  able,  by  an  exchange  of  diplomatic  notes,  to  arrange 
with  England  regarding  the  number  of  vessels  of  war  to  be 
kept  by  the  two  powers  upon  the  Great  Lakes.  So  also, 
upon  his  own  discretion,  the  President  is  able  to  send 
American  vessels  of  war  to  whatever  ports  he  sees  fit, 
whether  for  the  purpose  of  friendly  visits,  of  furnishing 
protection  to  American  citizens  or  their  property,  or  of 
making  a  "demonstration"  in  order  to  obtain  desired  action 
on  the  part  of  the  State  thus  overawed.6 

Extraditions 
The  greatly  preponderant  weight  of  opinion  is  that,  in 

5  For  instances,  see  Butler,  The  Treaty-Making  Power,  I,  369,  note. 

6  By  general  treaties  as  well  as  by  statutes  the  President  is  often 
given   authority   to   enter   into   specific   international   agreements 
which  do  not  need  to  be  submitted  to  the  Senate  for  its  approval 
before  they  become  effective.    The  constitutionality  of  this  dele- 
gation of  authority  is  considered  in  Field  v.  Clark,  143  U.  S.  649;  12 
Sup.  Ct.  Rep.  495;  36  L.  ed.  294. 


164  PRINCIPLES  OF  CONSTITUTIONAL  LAW 

the  absence  of  authority  expressly  given  him  by  treaty  or 
statute,  the  President  has  not  the  constitutional  right  to 
extradite  to  a  foreign'  country  a  fugitive  to  this  country. 
The  single  instance  in  which  the  President  has  extradited 
without  such  authority  expressly  conferred  upon  him  is 
the  surrender  to  Spain  by  Lincoln  in  1864  of  one  Arguelles. 
Whether  or  not  Congress  has  the  power  by  statute  to 
authorize  the  President  to  extradite  fugitives  to  countries 
with  which  the  United  States  has  no  subsisting  treaty  upon 
the  subject  is  not  certain,  as  there  has  been  no  instance 
of  the  exercise  of  such  power.  Reasoning  upon  general 
principles,  however,  there  would  seem  to  be  no  constitu- 
tional objection  to  such  legislation. 


CHAPTER  XXIV 

CONGRESSIONAL     LEGISLATION      FOR      THE      ENFORCEMENT 
OF    TREATIES 

Auxiliary  legislation  often  necessary 

Though  all  treaties,  as  declared  by  the  Constitution, 
are  parts  of  the  supreme  law  of  the  land,  they  are  not  al- 
ways, in  whole  or  in  part,  self-executing,  but  require  for 
their  enforcement  ancillary  legislative  action.  Especially 
is  this  legislative  assistance  required  when  an  expen- 
diture of  money  is  called  for.  The  treaty-making  power 
is  able  to  obligate  the  United  States  internationally  to 
the  payment  of  sums  of  money,  but  is  not  able  it- 
self to  appropriate  from  the  United  States  treasury  the 
amounts  called  for,  or  to  compel  the  legislature  to  provide 
for  their  payment.  The  same  is  true  as  to  other  legis- 
lation which  may  be  required  in  order  to  put  a  treaty  into 
full  force  and  effect.  The  moral  and  political  obligation 
upon  Congress  to  supply  this  legislation  or  to  make  the 
necessary  appropriations  is,  however,  exceedingly  strong. 
As  parts  of  the  supreme  law  of  the  land,  treaties  rest  upon 
a  plane  of  equality  with  acts  of  Congress,  but  upon  no 
higher  plane.  Resulting  from  this,  it  has  been  held  in  a 
number  of  well-considered  cases  that  an  act  of  Congress 
operates  to  repeal  or  annul  prior  treaty  provisions  in- 
consistent with  it.1 


1  Edye  v.  Robertson  (Head  Money  Cases),  112  U.  S.  580;  5  Sup.  Ct. 
Rep.  247;  28  L.  ed.  798;  Chae  Chan  Ping  v.  United  States,  130  U.  S. 
581;  9  Sup.  Ct.  Rep.  623;  32  L.  ed.  1068.  See  also  cases  cited  by 
Butler,  Treaty-Making  Power,  I,  86. 

165 


166  PRINCIPLES  OF  THE  CONSTITUTIONAL 

Effect  of  treaties  on  existing  statutes 

We  have  now  to  examine  whether,  without  congressional 
direction  or  permission,  it  is  competent  for  the  treaty- 
making  power  to  regulate  a  matter  which  it  is  within  the 
legislative  power  of  Congress  to  control;  or,  by  interna- 
tional agreements,  to  alter  arrangements  which  Congress 
has  by  statute  already  established. 

That  the  treaty-making  power  extends  to  many  sub- 
jects within  the  ordinary  legislative  powers  of  Congress 
there  can  be  no  doubt.  The  Supreme  Court  has,  in  a 
number  of  instances,  declared  that  treaties  and  acts  of 
Congress  stand,  as  law,  upon  exactly  equal  planes,  andr 
therefore,  that  the  later  treaty  operates  to  supersede  the 
earlier  law,  exactly,  as  we  have  seen,  the  later  law  has  the 
effect  of  abrogating  a  prior  inconsistent  treaty.2 

In  fact,  however,  there  have  been  few  instances  in 
which  a  treaty  inconsistent  with  a  prior  act  of  Congress 
has  been  given  full  force  as  law  in  this  country  without 
the  assent  of  Congress.  There  may  indeed  have  been 
cases  in  which,  by  treaty,  certain  action  has  been  taken 
without  reference  to  existing  Federal  laws,  as,  for  ex- 
ample, where  by  treaty  certain  populations  have  been 
collectively  naturalized,  but  such  treaty  action  has  not 
operated  to  repeal  or  annul  the  existing  law  upon  the 
subject.  Furthermore,  with  specific  reference  to  com- 
mercial arrangements  with  foreign  powers,  Congress  has 
explicitly  denied  that  a  treaty  can  operate  to  modify  the 
arrangements  which  it,  by  statute,  has  provided,  and,  in 
actual  practice,  Congress  in  every  instance  has  succeeded 
in  maintaining  this  point. 

There  would  seem  to  be,   however,  in  practice,  one 


2  Foster  v.  Neilson,  2  Pet.  253,  7  L.  ed.  415;  Cherokee  Tobacco 
Case,  11  Wall.  616;  20  L.  ed.  227.  See  also  United  States  v.  Lee  Yen 
Tai,  185  U.  S.  213;  22  Sup.  Ct.  Rep.  629;  46  L.  ed.  878,  and  cases 
there  cited. 


LAW  OF  THE  UNITED  STATES  167 

exception  to  the  rule  that  the  later  treaty  abrogates  the 
prior  inconsistent  statute,  and  this  is  in  reference  to  acts 
for  raising  revenue.  The  Constitution  expressly  declares 
that  "all  bills  for  raising  revenue  shall  originate  in  the 
House  of  Representatives."  Strictly  interpreted  this  pro- 
vision might  be  held  to  apply  only  to  "  bills,"  that  is,  to 
propositions  for  a  statute,  but  in  practice  the  spirit  of  the 
clause  has  been  followed  rather  than  its  exact  letter.3 

After  an  account  of  the  practice  of  the  government  and 
of  discussions  of  the  subject  in  Congress,  Mr.  Crandall, 
writing  in  1904,  says:  "From  this  historical  review  it  ap- 
pears that,  whatever  may  be  the  ipso  facto  effect  of  the 
treaty  stipulations,  entered  into  by  the  President  and  Sen- 
ate, upon  prior  inconsistent  revenue  laws,  not  only  has 
the  House  uniformly  insisted  upon,  but  the  Senate  has 
acquiesced  in,  their  execution  by  Congress;  that  in  case  of 
proposed  extensive  modifications  a  clause  has  been  in- 
serted in  the  treaty  by  which  its  operation  is  expressly 
made  dependent  upon  the  action  of  Congress;  and  that  in 
the  recent  Cuban  treaty  such  a  clause  was  inserted  on  the 
initiative  of  the  Senate."4 

It  is  to  be  observed,  before  leaving  this  subject,  that  in 
no  case  has  the  treaty-making  power,  whatever  its  actual 
concessions,  ever  admitted  in  full  terms  its  inability  to  fix 
as  laws  matters  which  are  within  the  legislative  powers  of 
Congress.  Thus  in  1902,  Senator  Cullom  emphatically 
asserted  that  only  with  reference  to  the  appropriation  of 
money  is  legislative  assistance  needed  in  order  that  treaties 
may  receive  acceptance  as  laws  in  our  courts.5 

It  is  to  be  remarked,  however,  that  in  Bertram  v.  Robert- 


3  See  Moore's  Digest  of  International  Law,  V,  223;  and  report  of 
Senate  Committee  on  Foreign  Affairs,  Compilation  of  Reports  of  the 
Committee  on  Foreign  Relations,  VIII,  36. 

4  Treaties:  Their  Making  and  Enforcement,  145. 

5  Butler,  Treaty-Making  Power,  I,  457. 


168  PRINCIPLES  OF  CONSTITUTIONAL  LAW 

son,6  and  Whitney  v.  Robertson,7  though  the  point  is  not 
expressly  discussed,  it  would  seem  that  the  court  impliedly 
held  that  a  treaty  might  modify  revenue  laws,  for  in  these 
cases  the  effect  of  treaties  upon  existing  tariff  laws  is  con- 
sidered without  a  suggestion  that  the  inquiry  is  an  un- 
necessary one  because  of  the  inability  of  the  treaty- 
making  power  to  modify  such  statutes. 

6 122  U.  S.  116;  7  Sup.  Ct.  Rep.  1115;  30  L.  ed.  1118. 
7 124  U.  S.  190;  8  Sup.  Ct.  Rep.  456;  31  L.  ed.  386. 


CHAPTER  XXV 

THE     CONSTITUTIONAL    EXTENT     OF     THE    TREATY -MAKING 

POWER 

Treaty-making  power  not  expressly  limited 

The  treaty-making  power  is  granted  in  the  Constitution 
without  any  express  limitations  as  to  the  subjects  to  which 
it  may  relate.  And  all  treaties,  without  qualification,  are 
declared  to  be  the  supreme  law  of  the  land,  "any thing  in 
the  Constitution  or  laws  of  any  State  to  the  contrary  not- 
withstanding." If,  then,  there  are  any  limitations  upon 
its  extent,  they  must  be  found  inherent  to  the  nature  of 
treaties  themselves,  or  implied  in  other  clauses  of  the  Con- 
stitution, or  in  the  very  nature  of  the  polity  which  that 
instrument  is  designed  to  create  and  maintain. 

No  treaty  has  ever  been  held  unconstitutional  in  any 
court,  Federal  or  State,  in  the  United  States.  That  there 
are,  however,  limits,  despite  the  fact  that  in  no  case  has 
there  arisen  the  necessity  for  applying  them  in  a  court  of 
law,  would  appear  beyond  question.  From  the  early  years 
of  the  present  Government  to  the  decision  of  the  Insular 
Cases  in  1901,  the  Supreme  Court  has,  upon  frequent  oc- 
casions, stated,  not  only  in  general  terms,  but  with  refer- 
ence to  specific  matters,  that  there  are  limits  to  the  sub- 
jects that  may,  by  treaty,  be  made  the  supreme  law  of  the 
land.1  And  in  Downes  v.  Bidwell 2  four  of  the  majority 

1  New  Orleans  v.  United  States,  10  Pet.  662;  9  L.  ed.  573;  Pollard's 
Lessee  v.  Hagan,  3  How.  212;  11  L.  ed.  565;  Cherokee  Tobacco  Case, 
11  Wall.  616;  20  L.  ed.  227;  DeGeofroy  v.  Riggs,  133  U.  S.  258;  10 
Sup.  Ct.  Rep.  295;  33  L.  ed.  642,  and  cases  there  cited. 

2 182  U.  S.  244;  21  Sup.  Ct.  Rep.  770;  45  L.  ed.  1088.  For  addi- 

169 


170  PRINCIPLES  OF  THE  CONSTITUTIONAL 

justices  declare  in  their  opinion  that  the  treaty-making 
power  is  incompetent  to  incorporate  annexed  territory 
into  the  United  States.  And  the  minority  justices  assert 
that  "a  treaty  which  undertook  to  take  away  what  the 
Constitution  secured,  or  to  enlarge  the  Federal  juris- 
diction, would  be  simply  void." 

These  dicta  of  the  Supreme  Court  are  really  obiter  in  that 
in  no  case  was  a  treaty  provision  held  void.  However, 
the  statement  being  so  often  and  so  positively  asserted  it 
m£y  be  taken  for  granted  that  there  are  constitutional 
limits  to  the  treaty-making  power,  and  that  when  these 
limits  are  overstepped,  the  courts  will  interpose  their  veto. 

The  treaty-making  power  and  the  reserved  rights  of  the 

States 

The  supremacy  of  a  Federal  treaty  over  a  conflicting 
State  law,  with  reference  to  matters  not  reserved  to  the 
States,  has  not  been  questioned  since  the  time  it  was  estab- 
lished that  a  Federal  statute,  enacted  within  either  the 
concurrent  or  exclusive  constitutional  competency  of  Con- 
gress, operates  to  nullify  all  inconsistent  State  legislation. 
In  this  respect,  as  the  Constitution  expressly  declares, 
treaties  and  acts  of  Congress  are  upon  precisely  the  same 
footing.3 


tional  declarations  by  the  Supreme  Court  that  treaties  are  neces- 
sarily subordinate  to  the  provisions  of  the  Constitution,  see  Ware  v. 
Hylton,  3  Ball.  199;  1  L.  ed.  568;  United  States  v.  The  Peggy,  1  Cr. 
103;  2  L.  ed.  49;  Lattimer  v.  Poteet,  14  Pet.  4;  10  L.  ed.  328;  Doe  v. 
Braden,  16  How.  635;  14  L.  ed.  1090;  Thomas  v.  Gay,  169  U.  S.  264; 
18  Sup.  Ct.  Rep.  340;  42  L.  ed.  740.  In  United  States  v.  Wong  Kim 
Ark,  169  U.  S.  649;  18  Sup.  Ct.  Rep.  456;  42  L.  ed.  890,  the  minority 
point  out  that  the  effect  of  the  decision  of  the  majority  is  to  limit 
the  treaty-making  power  with  reference  to  the  prevention  of  children 
of  resident  aliens,  born  within  the  United  States,  from  becoming 
citizens  of  the  United  States. 

3  Ware  v.  Hylton,  3  Dall.  199;  1  L.  ed.  568;  Fairfax  v.  Hunter,  7  Cr. 


LAW  OF  THE  UNITED  STATES  171 

It  may,  then,  be  considered  as  established  that  a  'treaty 
entered  into  by  the  Federal  Government  with  respect  to  a 
matter  within  the  Federal  jurisdiction  is  supreme  over  a 
conflicting  State  law.  This  leads  to  the  question  whether, 
by  an  exercise  of  the  treaty-making  power,  the  Federal 
Government  may  regulate  matters  within  the  States  which 
it  may  not  control  by  an  act  of  Congress,  and  if,  in  this 
respect,  the  treaty-making  power  is  broader  than  the  legis- 
lative, in  what  respects,  and  to  what  extents,  it  is  broader. 

Upon  this  point  the  declarations  of  the  Supreme  Court 
are  not  completely  satisfactory.  In  various  of  its  opinions 
this  tribunal  has  explicitly  asserted  that  the  rights  re- 
served by  the  Constitution  from  the  control  of  the  other 
departments  of  the  Federal  Government  may  not  be  in- 
fringed by  its  treaty-making  power.4 

Opposing,  however,  the  dicta  of  these  cases  there  is  a 
line  of  cases  in  which  treaties  have  been  held  constitutional 
with  reference  to  matters  which  are  admittedly  not  within 
the  power  of  Congress  to  control.  And,  also,  there  have 
been  numerous  cases  in  which  State  laws  with  reference  to 
matters  within  the  ordinary  legislative  competency  of  the 
States,  have  been  held  void  because  of  conflict  with  sub- 
sisting Federal  treaties.5 

Thus,  in  the  case  of  De  Geofroy  v.  Riggs,6  it  is  declared: 


603;  3  L.  ed.  453;  Chirac  v.  Chirac,  2  Wh.  259;  4  L.  ed.  234;  Hauen- 
stein  v.  Lynham,  100  U.  S.  483;  25  L.  ed.  628. 

4  Prevost  v.  Greenaux,  19  How.  1;  15  L.  ed.  572;  License  Cases 
(dissenting  opinion  of  Daniel),  5  How.  504;  12  L.  ed.  256;  Passenger 
Cases  (dissenting  opinion  of  Taney),  7  How.  283;  12  L.  ed.  702. 

s  Ware  v.  Hylton,  3  Ball.  199;  1  L.  ed.  568;  Hopkirk  v.  Bell,  3  Cr. 
454;  2  L.  ed.  497;  Fairfax  v.  Hunter,  7  Cr.  603;  3  L.  ed.  453;  Chirac 
v.  Chirac,  2  Wh.  259;  4  L.  ed.  234;  Lattimer  v.  Poteet,  14  Pet.  4;  10 
L.  ed.  328;  Hauenstein  v.  Lynham,  100  U.  S.  483;  25  L.  ed.  628.  See 
also  dictum  in  Ward  v.  Race  Horse,  163  U.  S.  504;  16  Sup.  Ct.  Rep. 
1076;  41  L.  ed.  244.  See  also  note  8. 

6  133  U.  S,  258;  10  Sup.  Ct.  Rop.  295;  33  L.  ed.  642, 


172  PRINCIPLES  OF  THE  CONSTITUTIONAL 

"That  the  treaty  power  of  the  United  States  extends  to  all 
proper  subjects  of  negotiation  between  our  government 
and  the  governments  of  other  nations,  is  clear.  It  is  also 
clear  that  the  protection  that  should  be  afforded  the  citi- 
zens of  one  country  owning  property  in  another,  and  the 
manner  in  which  the  property  may  be  transferred,  devised 
or  inherited,  are  fitting  subjects  for  such  negotiations  and 
of  regulation  by  mutual  stipulations,  between  the  two  coun- 
tries. .  .  .  The  treaty  power,  as  expressed  in  the  Con- 
stitution, is  in  terms  unlimited  except  by  those  restraints 
which  are  found  in  that  instrument  against  the  action  of 
the  government  or  of  its  departments,  and  those  arising 
from  the  nature  of  the  government  itself  and  of  that  of  the 
States.  It  would  not  be  contended  that  it  extends  so  far 
as  to  authorize  what  the  Constitution  forbids,  or  a  change 
in  the  character  of  the  government  or  in  that  of  one  of  the 
States,  or  a  cession  of  any  portion  of  the  territory  of  the 
latter,  without  its  consent.7  But  with  these  exceptions, 
it  is  not  perceived  that  there  is  any  limit  to  the  ques- 
tions which  can  be  adjusted  touching  any  matter  which 
is  properly  the  subject  of  negotiation  with  a  foreign 
country." 

In  a  number  of  instances  State  laws  with  reference  to 
matters  ordinarily  within  State  cognizance  have  been  held 
void  when  in  conflict  with  existing  Federal  treaties.  Ex- 
amples of  this  are  laws  denying  the  right  of  the  alien  to  be 
employed  by  contractors  upon  public  works,  or  to  be  em- 
ployed by  private  corporations.8 

How,  then,  are  we  to  harmonize  these  declarations  that 
the  reserved  rights  of  the  States  may  not  be  infringed  by 


7  Citing  Fort  Leavenworth  R.  R.  Co.  v.  Lowe,  114  U.  S.  525;  5 
Sup.  Ct.  Rep.  995;  29  L.  ed.  264. 

8  Baker  v.  Portland,  5  Sawyer,  566;  hi  re  Tiburcio,  6  Sawyer,  349; 
In  re  Ah  Chong,  6  Sawyer,  451.    Cf.  Proceedings  of  the  Am.  Soc.  of 
International  Law,  1907,  address  by  Prof.  C.  N.  Gregory. 


LAW  OF  THE  UNITED  STATES  173 

the  treaty  power  with  the  fact  that,  in  specific  instances, 
the  invasion  of  these  rights  has  been  upheld? 

Strictly  speaking,  the  two  positions,  thus  absolutely 
stated,  cannot  be  harmonized.  There  is  no  principle 
which  can  be  stated  that  will  bring  the  dicta  quoted  into 
consonance  with  the  decisions  referred  to.  Either  the 
dicta  denying  to  the  treaty-making  power  the  right  to 
infringe  State  rights  are  wrong,  and  must  be  abandoned, 
or  the  decisions  upholding  such  infringement  were  im- 
proper, and  will  not  be  followed  in  the  future. 

The  author  is  convinced  that  the  obiter  doctrine  that 
the  reserved  rights  of  the  States  may  never  be  infringed 
upon  by  the  treaty-making  power  will  sooner  or  later  be 
frankly  repudiated  by  the  Supreme  Court.  In  its  place 
will  be  definitely  stated  the  doctrine  that  in  all  that  prop- 
erly relates  to  international  rights  and  obligations,  whether 
these  rights  and  obligations  rest  upon  the  general  principles 
of  international  law  or  have  been  conventionally  created 
by  specific  treaties,  the  United  States  possesses  all  the 
powers  of  a  constitutionally  centralized  sovereign  State; 
and,  therefore,  when  the  necessity  from  the  international 
standpoint  arises  the  treaty-making  power  may  be  exer- 
cised, even  though  thereby  the  rights  ordinarily  reserved 
to  the  States  are  invaded. 

Implied  limitations  upon  the  treaty-making  power 

Assuming,  then,  that  the  reasoning  that  has  gone  before 
is  correct,  it  may  be  asked:  Are  we  led  to  the  conclusion 
that,  in  extent,  the  treaty-making  power  is  without  con- 
stitutional limits? 

Briefly  stated,  the  answer  is  that  these  limitations  are 
to  be  found  in  the  very  nature  of  treaties.  That  is,  that 
the  treaty-making  power  may  not  be  used  to  secure  a  regu- 
lation or  control  of  a  matter  not  properly  and  fairly  a 
matter  of  international  concern.  It  cannot  be  employed 


174  PRINCIPLES  OF  THE  CONSTITUTIONAL 

with  reference  to  a  matter  not  legitimately  a  subject  for 
international  agreement,  any  more  than  can  the  States 
under  a  claim  of  an  exercise  of  their  police  powers  regulate 
a  matter  not  fairly  comprehended  within  the  field  of  police 
regulation.  Thus,  wliile  it  might  be  appropriate  for  the 
United  States,  by  treaty  with  England,  to  provide  that 
English  citizens  livjftg  in  the  United  States  should  have 
^certain  rights  of  property,  or  schooling  privileges,  etc., 
within  the  States,  State  law  to  the  contrary  notwithstand- 
ing, it  would  not  be  appropriate,  and,  therefore,  would  not 
be  constitutional,  for  the  United  States  by  such  a  treaty 
to  provide  that  all  aliens,  whether  British  subjects  or  not, 
should  enjoy  these  rights  within  the  States  within  which 
they  might  live.  So  likewise,  it  would  not  be  a  proper  or 
constitutional  exercise  of  the  treaty-making  power  to  pro- 
vide that  Congress  should  have  a  general  legislative  au- 
thority over  a  subject  which  has  not  been  given  it  by  the 
Constitution;  or  that  a  power  now  exercised  by  one  of  the 
departments  of  the  General  Government  should  be  exer- 
cised by  another  department.  For  these  are  matters  of 
domestic  national  law  with  which  foreign  powers  have 
no  concern.  In  short,  the  treaty-making  power  is  to  be 
exercised  with  constitutional  bona  fides. 

The  principle  which  has  been  stated,  that,  to  be  con- 
stitutionally valid,  a  treaty  must  have  reference  to  a  sub- 
ject properly  a  matter  of  international  agreement,  excludes 
from  the  Federal  treaty-making  power  the  authority  to 
disregard  those  prohibitions  of  the  Constitution,  express 
and  implied,  which  are  directed  not  to  Congress  but  to 
the  National  Government  as  a  whole. 

One  final  point  with  reference  to  the  treaty-making 
power  deserves  notice.  This  is  that  where,  for  its  enforce- 
ment, a  treaty  requires  ancillary  legislation,  Congress 
would  seem  to  have  the  constitutional  power  to  enact  the 
needed  laws,  even  though  these  may  relate  to  matters  not 


LAW  OF  THE  UNITED  STATES  175 

within  the  general  sphere  of  its  legislative  authority.  For 
it  is  to  be  presumed  that  the  General  Government  has  the 
power  to  render  effective  a  treaty  which  it  has  the  con- 
stitutional power  to  enter  into.  A  somewhat  analogous 
case  is  the  legislative  power  recognized  to  belong  to  Con- 
gress with  reference  to  matters  of  admiralty  and  marine, 
because  of  the  grant  to  the  Federal  Judiciary  of  jurisdiction 
over  admiralty  and  maritime  causes.9 

The  denunciation  of  treaties 

Though  the  Senate  participates  in  the  ratification  of 
treaties,  the  President  has  at  times  exercised  the  au- 
thority, without  asking  for  senatorial  advice  and  consent, 
to  denounce  an  existing  treaty  and  to  declare  it  no  longer 
binding  upon  the  United  States.  In  important  cases,  how- 
ever, it  is  usual  for  him  to  seek  senatorial  approval  before 
taking  action.  But  whether  or  not  this  approval  be  sought, 
the  courts  hold  themselves  bound  by  the  denunciation,  the 
existence  or  non-existence  of  a  treaty  being  a  political  ques- 
tion the  decision  upon  which  by  the  political  departments 
of  the  government  is  binding  upon  the  judicial  department. 

Construction  of  treaties 
As  to  public  rights  the  courts  hold  themselves  bound  by 

9  That  the  treaty-making  power  is  incompetent  to  "  incorporate " 
foreign  territory  into  the  United  States  (Insular  Cases)  or  to  provide 
that  children  born  within  the  United  States  of  alien  parents  shall 
not  be  citizens  of  the  United  States  (United  States  t>.  Wong  Kim 
Ark,  169  U.  S.  649,  18  Sup.  Ct.  Rep.  456;  42  L.  ed.  890)  we  have 
already  seen.  That  the  treaty-making  power  may  alienate  territory 
would  seem  to  be  certain.  See  Willoughby  On  the  Constitution,  §  219. 
See  also  the  same  work,  §§  220-222,  for  a  discussion  of  constitutional 
questions  connected  with  the  violation  of  treaties,  whether  by  affirm- 
ative acts  upon  the  part  of  the  United  States,  by  failure  of  Congress 
to  enact  the  necessary  ancillary  legislation,  by  subsequent  repealing 
statute,  or  by  the  declaration  of  the  courts  that  they  are  uncon- 
stitutional and  void  of  legal  force. 


176  PRINCIPLES  OF  CONSTITUTIONAL  LAW 

the  construction  given  to  treaties  by  the  political  depart- 
ments. As  to  private  rights,  however,  arising  under 
treaties  in  force,  and  even  as  to  public  rights  when  these 
are  inseparable  from  private  rights,  the  courts  exercise 
independent  judgment  as  to  the  meaning  to  be  given  to 
treaty  provisions. 


CHAPTER  XXVI 

THE  AMENDMENT  OF   THE  FEDERAL   CONSTITUTION 

The  amending  clause 

The  amendment  of  the  Federal  Constitution,  while 
politically  a  subject  of  great  importance,  has  given  rise  to 
few  legal  adjudications. 

Article  V  of  the  Constitution  provides:  "  The  Congress, 
whenever  two-thirds  of  both  Houses  shall  deem  it  neces- 
sary, shall  propose  amendments  to  this  Constitution,  or, 
on  the  application  of  the  legislatures  of  two-thirds  of  the 
several  States,  shall  call  a  convention  for  proposing  amend- 
ments, which,  in  either  case,  shall  be  valid  to  all  intents 
and  purposes  as  parts  of  this  Constitution,  when  ratified 
by  the  legislatures  of  three-fourths  of  the  several  States, 
or  by  conventions  in  three-fourths  thereof,  as  the  one  or 
the  other  mode  of  ratification  may  be  proposed  by  the 
Congress;  Provided  that  no  amendment  which  may  be 
made  prior  to  the  year  one  thousand  eight  hundred  and 
eight  shall  in  any  manner  affect  the  first  and  fourth  clauses 
in  the  ninth  section  of  the  first  article;  and  that  no  State, 
without  its  consent,  shall  be  deprived  of  its  equal  suffrage 
in  the  Senate." 

It  will  be  seen  that  two  methods  for  proposing,  as  well 
as  two  methods  for  ratifying  proposed  amendments  are 
provided.  In  practice,  however,  the  fifteen  amendments 
which  have  been  added  to  the  Constitution  as  originally 
adopted  have  all  been  proposed  by  Congress  and  that  body 
has  in  each  instance  provided  for  ratification  by  the  State 
legislatures. 

12  177 


178  PRINCIPLES  OF  THE  CONSTITUTIONAL 

When  proposing  amendments  it  has  been  held  that  two- 
thirds  of  those  present  in  the  Houses  of  Congress  and  not 
two-thirds  of  their  entire  membership  is  required. 

The  requirement  of  a  two-thirds  vote  applies  only  as  to 
the  vote  on  the  final  passage  of  the  proposal.  Proposed 
amendments,  it  has  therefore  been  held,  may  be  amended 
by  a  majority  vote,  but  two-thirds  are  required  when  one 
House  is  voting  finally  to  concur  in  proposals  of  the  other 
House.1 

The  President's  approval  of  a  proposed  amendment 
is  not  required.  In  Hollingsworth  v.  Virginia2  the  court 
without  argument  say:  "The  negative  of  the  President 
applies  only  to  the  ordinary  cases  of  legislation;  he  has 
nothing  to  do  with  the  proposition  or  adoption  of  amend- 
ments to  the  Constitution." 

In  scope  the  amending  power  is  now  limited  as  to  but 
one  subject,  namely,  the  equal  representation  of  the  States 
in  the  Senate.  It  has  by  some  been  argued  that  even  this 
limitation  may  be  evaded  by  adopting  a  constitutional 
amendment  eliminating  this  limitation  upon  the  amending 
power,  and  thus  opening  the  way  to  subsequent  amend- 
ments providing  for  an  unequal  senatorial  representation 
of  the  States.3 

It  would  seem  that  a  State  legislature  which  has  rejected 
an  amendment  proposed  by  Congress,  may  later  reconsider 
its  action  and  give  its  approval.4  This  in  fact  was  done 
by  several  States  with  reference  to  the  Fourteenth  Amend- 
ment, and  the  ratifications  thus  given  were  accepted. 
That  a  ratification  once  given  may  not  be  withdrawn 
would  also  seem  to  be  settled  by  the  action  taken  by  the 


1  Hinds  Precedents  of  the.  House  of  Representatives,   V,  §§  7029- 
7039. 

2  3  Dall.  378;  1  L.  ed.  644. 

3  Cf.  Von  Hoist,  Constitutional  Law  of  the  United  States,  31,  note. 

4  Jameson,  The  Constitutional  Convention,  §  576. 


LAW  OF  THE  UNITED  STATES  179 

Federal  authorities  in  counting  among  those  ratifying  the 
Fourteenth  Amendment  certain  States  which,  having 
ratified,  later  attempted  to  reverse  this  action.5 

5  Jameson,  Id.,  §§  577-584.  For  an  excellent  treatment  of  the 
various  constitutional  questions  that  have  been  raised  in  the  States 
with  reference  to  the  amendment  of  their  several  Constitutions,  see 
Dodd,  The  Revision  and  Amendment  of  State  Constitutions  (1910). 


CHAPTER  XXVII 

CONGRESS — ITS    ORGANIZATION:    PRIVILEGES    OF    MEMBERS 

The  first  section  of  Article  I  of  the  Constitution  provides 
that  "all  legislative  powers  herein  granted  shall  be  vested 
in  a  Congress  of  the  United  States,  which  shall  consist  of  a 
Senate  and  House  of  Representatives."  The  following  sec- 
tions of  this  article  provide  for  the  composition  and  organ- 
ization of  these  two  branches  of  the  national  legislature 
and  enumerate  the  powers  which  they  may  collectively  and 
severally  exercise.  In  the  present  chapters  we  shall  be 
concerned  with  the  constitutional  provisions  for  the  or- 
ganization of  Congress. 

Qualifications  for  senators  and  representatives 

It  is  required  by  the  Constitution  that  Representatives 
shall  have  attained  the  age  of  twenty-five  years,  have  been 
seven  years  citizens  of  the  United  States,  and  be,  when 
elected,  inhabitants  of  the  State  in  which  they  are  chosen. 
Senators  are  required  to  be  thirty  or  more  years  of  age,  to 
have  been  nine  years  citizens  of  the  United  States,  and  to 
be,  when  elected,  inhabitants  of  the  State  for  which  they 
are  chosen. 

It  is  furthermore  provided  by  the  Constitution  that 
"no  person  holding  an  office  under  the  United  States  shall 
be  a  member  of  either  house  during  his  continuance  in 
office." 

Furthermore,  by  §  3   of  the   Fourteenth  Amendment 
it  is  declared  that:   "No  person  shall  be  a  Senator  or 
Representative  in  Congress,  or  Elector  of  President  and 
180 


LAW  OF  THE  UNITED  STATES  181 

Vice-President,  or  hold  an  office,  civil  or  military,  under 
the  United  States,  who,  having  previously  taken  an  oath, 
as  a  member  of  Congress,  or  as  an  officer  of  the  United 
States,  or  as  a  member  of  any  State  legislature,  or  as  an 
executive  or  judicial  officer  of  any  State,  to  support  the 
Constitution  of  the  United  States,  shall  have  engaged  in 
insurrection  or  rebellion  against  the  same,  or  given  aid  or 
comfort  to  the  enemies  thereof.  But  Congress  may  by  a 
vote  of  two-thirds  of  each  House  remove  such  disability."1 

It  will  be  observed  that  habitancy  and  not  mere  resi- 
dency in  a  State  is  required.  Habitancy  implies  greater 
permanency  than  does  residence.  "A  man's  residence  is 
often  a  legal  conclusion  from  statements  showing  his  in- 
tention. Habitancy  is  a  physical  fact  which  may  be 
proved  by  eyewitnesses." 

The  constitutional  provision  is  that  habitancy  shall 
exist  at  the  time  of  election.  It  is  thus  legally  possible 
for  a  member  of  Congress,  after  election,  to  become  an 
inhabitant  of  another  State  without  thereby  forfeiting 
his  seat. 

Qualifications  determined  by  Congress 

Though  essentially  a  judicial  function  the  conclusive 
determination  as  to  whether  the  constitutional  qualifica- 
tions for  membership  have  been  met  is,  by  the  Constitu- 
tion, placed  in  the  hands  of  each  of  the  two  Houses  of 
Congress.  It  thus  happens  that,  though  neither  House 
may  formally  impose  qualifications  additional  to  those 
mentioned  in  the  Constitution,  or  waive  those  that  are 


1  Congress  has  removed  this  disability  from  all,  or  practically 
all  persons  suffering  from  it  because  of  participation  in  the  Civil 
War.    Delegates  from  the  Territories  who  are  given  the  right  to  sit 
and  speak  but  not  to  vote  in  the  House  of  Representatives  have 
their  qualifications  and  terms  of  office  determined  by  the  Congress. 

2  Foster,  Commentaries,  §62. 


182  PRINCIPLES  OF  THE  CONSTITUTIONAL 

mentioned,  each  may  in  practice  do  either  of  these  things. 
For  example,  in  1900,  the  House  excluded  Brigham  H. 
Roberts  of  Utah  because  of  various  charges  brought  against 
him,  none  of  which,  however,  alleged  a  constitutional  dis- 
qualification. In  this  case  it  was  strenuously  argued  that, 
having  the  necessary  constitutional  qualifications,  Rob- 
erts should  be  admitted  to  membership,  and  then  if 
the  House  should  see  fit,  he  might  be  expelled  by  a  two- 
thirds  vote.3  For  the  right  to  expel,  it  is  admitted,  is 
absolute,  and  may  be  exercised  for  any  reason  which  the 
House  thinks  adequate.  The  House,  however,  by  a  large 
majority,  voted  to  exclude  Roberts.4 

It  is  plain  that  no  State  may  add  qualifications  to  those 
required  by  the  Constitution  of  members  of  Congress. 
Thus  in  1865,  the  governor  of  a  State  having  refused  to 
issue  credentials  to  the  rival  claimants,  because  they  were 
disqualified  under  provisions  of  the  State  Constitution  to 
membership  in  the  House,  the  House  seated  the  one  shown 
prima  fade  by  official  statement  to  have  a  majority  of 
votes.5  Similar  action  was  taken  by  the  Senate  the  same 
year. 

The  disqualification  of  a  member  of  Congress,  it  has 
been  held,  does  not  entitle  the  person  receiving  the  next 
highest  vote,  to  his  seat.6 

Members  who  have  already  taken  the  oath  may,  it  has 
been  held,  be  unseated  by  a  majority  vote.  That  is  to 
say,  disqualification  being  shown  the  process  of  expulsion, 
which  requires  a  two-thirds  vote,  is  not  needed.7 


3  Const.,  Art.  I,  §  5,  cl.  2. 

4  For  a  full  statement  of  the  arguments  pro  and  contra  in  this 
important  case,  see  House  Rpt.  85,  56th  Congress,  1st  Session.    Also 
Hinds  Precedents  of  the  House  of  Representatives,  Vol.  I. 

5  Hinds,  §  415.    Story's  Commentaries,  §§  623-629. 
8  Hinds,  §  424. 

7  Hinds,  §  424. 


LAW  OF  THE.  UNITED  STATES  183 

In  contested  election  cases,  each  House  may  examine 
witnesses,  compel  testimony  and  the  production  of  papers, 
and  punish  witnesses  for  contempt.8  Imprisonment  for 
contempt  must,  however,  cease  with  the  adjournment  of 
the  Congress  which  orders  it,  for  with  the  dissolution  of 
that  body  its  authority  necessarily  ceases.9 

Disqualification  of  congressmen  to  hold  Federal  office 

The  second  clause  of  §  6  of  Article  I  of  the  Constitu- 
tion provides  that:  "No  Senator  or  Representative  shall, 
during  the  time  for  which  he  was  elected,  be  appointed  to 
any  civil  office  under  the  authority  of  the  United  States, 
which  shall  have  been  created,  or  the  emoluments  whereof 
shall  have  been  increased,  during  such  time,  and  no  per- 
son holding  any  office  under  the  United  States  shall  be  a 
member  of  either  House  during  his  continuance  in  office." 
In  pursuance  of  this  provision  members  of  Congress  have 
had  their  seats  declared  vacant  for  accepting  commissions 
as  officers  of  the  volunteer  and  regular  army  forces  of  the 
United  States.  Visitors  to  academies,  directors  and  trus- 
tees of  public  Federal  institutions  appointed  by  law,  are 
not  held  disqualified.10 

8  Kilbourn  v.  Thompson,  103  U.  S.  168;  26  L.  ed.  377. 

9  Anderson  v.  Dunn,  6  Wh.  204;  5  L.  ed.  242.    For  historical  ac- 
counts of  the  manner  in  which  contested  elections  in  Congress  have 
been  considered,  see  Journal  of  Social  Science,   1870,  p.  56;  and 
Political  Science  Quarterly,  XX,  421.    In  the  case  of  Re  Loney,  134 
U.  S.  372;  10  Sup.  Ct.  Rep.  384;  33  L.  ed.  949,  it  was  held  that  a 
notary  public  or  other  State  officer  designated  by  Congress  to  take 
depositions  in  contested  election  cases  acts  under  authority  of  Con- 
gress and  that  perjury  committed  before  him  is  an  offense  exclu- 
sively cognizable  in  the  Federal  courts. 

10  House  Rpt.  2205,  55th  Cong.  3d  Sess.     In  United  States  v. 
Hartwell,  6  Wall.  385;  18  L.  ed.  830,  it  is  declared  that  "an  office  is 
a  public  station  or  employment  conferred  by  the  appointment  of 
government.     The  term  embraces  the  ideas  of  tenure,  duration, 
emolument,  and  duties." 


184  PRINCIPLES  OF  THE  CONSTITUTIONAL 

The  House  has  also  held  that  a  contractor  under  the 
Federal  Government  is  not  constitutionally  disqualified 
as  a  member. 

A  State  office  does  not  disqualify  for  membership. 
Thus,  for  example,  Senator  La  Follette  held  the  office  of 
Governor  of  Wisconsin  until  January,  1906,  although  the 
Senate,  after  his  election  to  that  body,  met  in  extra  ses- 
sion the  preceding  March.  Senator  La  Follette  did  not, 
however,  appear  in  the  Senate  or  take  the  oath  until  Jan- 
uary 4,  1906. 

Members-elect,  it  has  been  held,  may  defer  until  the 
meeting  of  Congress  their  choice  between  their  seats  and 
incompatible  offices  to  which  they  may  have  been  elected 
or  appointed.11 

The  seat  of  a  member  who  has  accepted  an  incompatible 
office  may  be  declared  vacant  by  a  majority  vote.12 

Privileges  of  members  of  Congress 

The  first  clause  of  the  Sixth  Section  of  Article  I  of  the 
Constitution  provides:  "The  Senators  and  Representa- 
tives .  .  .  shall  in  all  cases  except  treason,  felony  and 
breach  of  the  peace,  be  privileged  from  arrest  during  their 
attendance  at  the  session  of  their  respective  houses,  and 
in  going  to  and  returning  from  the  same,  and  for  any  speech 
or  debate  in  either  house,  they  shall  not  be  questioned  in 
any  other  place." 

The  exemption  from  arrest  thus  given  is  now  of  little 
importance,  as  arrest  of  the  person  is  now  almost  never 
authorized  except  for  crimes  which  fall  within  the  classes 
exempt  from  the  privilege.  The  words  "treason,  felony 
and  breach  of  the  peace"  have  been  construed  to  mean  all 
indictable  crimes.13 


11  Hinds,  §  492. 

12  Hinds,  §  504. 

13  Williamson  v.  United  States,  207  U.  S.  425;  28  Sup.  Ct.  Rep. 


LAW  OF  THE  UNITED  STATES  185 

As  regards  the  freedom  of  the  members  of  Congress  from 
prosecution  for  words  spoken  in  either  House,  no  comment 
is  needed,  except  to  observe  that  this  privilege  does  not 
extend  to  the  outside  publication  by  a  member  of  libel- 
ous  matter  spoken  in  Congress.  As  Story  observes:  "No 
man  ought  to  have  a  right  to  defame  others  under  color 
of  a  performance  of  the  duties  of  his  office.  And  if  he  does 
so  in  the  actual  discharge  of  his  duties  in  Congress,  that 
furnishes  no  reason  why  he  should  be  enabled  through 
the  medium  of  the  press  to  destroy  the  reputation  and 
invade  the  repose  of  other  citizens." 

It  may  be  further  observed  that  the  constitutional  im- 
munity extends  to  witnesses  appearing  before  committees 
of  Congress,  and,  probably,  to  petitions,  and  other  ad- 
dresses to  that  body.15 

163;  52  L.  ed.  278.  Also,  Hinds,  §  2673.  In  Kilbourn  v.  Thompson, 
103  U.  S.  168;  26  L.  ed.  377,  is  considered  the  personal  liability  of 
the  individual  members  of  Congress  who  had  participated  in  a  com- 
mitment for  contempt  which  commitment  was  beyond  the  con- 
stitutional power  of  Congress. 

14  Commentaries,  §  863. 

15  See  the  excellent  paper  by  Mr.  Van  Vechten  Veeder  entitled 
" Absolute   Immunity  in  Defamation:  Legislative  and   Executive 
Proceedings,"  in  the  Columbia  Law  Review,  Feb.,  1910. 


CHAPTER  XXVIII 

ELECTION  OF  MEMBERS  OF  CONGRESS 

Their  apportionment  among  the  States 

The  Constitution  provides  that  the  House  of  Repre- 
sentatives shall  be  composed  of  members  chosen  every 
second  year  by  the  people  of  the  several  States,  and  that 
they  shall  be  apportioned  among  the  States  according  to 
their  several  populations,  the  whole  number  of  persons 
in  each  State,  excluding  Indians  not  taxed,  being  counted. 
The  Fourteenth  Amendment  further  provides  that  "when 
the  right  to  vote  at  any  election  for  the  choice  of  electors 
for  President  and  Vice-President  of  the  United  States, 
representatives  in  Congress,  the  executive  or  judicial  of- 
ficers of  a  State,  or  the  members  of  the  legislature  thereof, 
is  denied  to  any  of  the  male  inhabitants  of  such  State,  be- 
ing twenty-one  years  of  age  and  citizens  of  the  United 
States,  or  in  any  way  abridged  except  for  participation 
in  rebellion  or  other  crime,  the  basis  of  representation 
therein  shall  be  reduced  in  the  proportion  which  the  num- 
ber of  such  male  citizens  shall  bear  to  the  whole  number 
of  male  citizens  twenty-one  years  of  age  in  such  State." 

This  amendment  thus  leaves  it  within  the  constitutional 
power  of  the  States  to  place  such  restrictions  as  they  may 
choose  upon  the  exercise  of  the  suffrage  within  their  limits, 
but  subject  to  a  reduction  in  the  number  of  representatives 
to  which  they  are  entitled  in  Congress  to  the  extent  to 
which  the  right  to  vote  is  denied  to  adult  male  inhabitants, 
citizens  of  the  United  States. 

The  Fifteenth  Amendment,  adopted  two  years  later, 
186 


LAW  OF  THE  UNITED  STATES  187 

places  the  absolute  prohibition  upon  the  States  that  Vthe 
right  of  citizens  of  the  United  States  to  vote  shall  not  be 
denied  or  abridged  ...  on  account  of  race,  color  or 
previous  condition  of  servitude." 

As  is  well  known,  most  of  the  Southern  States  have,  by 
various  provisions  inserted  in  their  several  Constitutions, 
in  large  measure  eliminated  the  negro  vote.  This  has  led 
to  a  certain  amount  of  agitation  both  in  the  public  press 
and  in  Congress  for  the  enforcement  of  the  reduction  of 
representation  clause  of  the  Fourteenth  Amendment,  but 
as  yet  no  decisive  steps  have  been  taken. 

Educational  qualifications 

In  various  States  of  the  Union  property,  educational, 
and  other  qualifications  upon  the  right  to  vote  have  been 
established.  These  limitations  upon  adult  male  suffrage 
have  not,  however,  been  held  to  warrant  an  application 
of  the  reduction  of  representation  clause  of  the  Fourteenth 
Amendment.  To  quote  the  words  of  Cooley :  "  To  require 
the  payment  of  a  capitation  tax  is  no  denial  of  suffrage,  it 
is  demanding  only  the  preliminary  performance  of  a  pub- 
lic duty  and  may  be  classed,  as  may  also  presence  at  the 
polls,  with  registration,  or  the  observance  of  any  other 
preliminary  to  insure  fairness  and  protect  against  fraud. 
Nor  can  it  be  said  that  to  require  ability  to  read  is  any  de- 
nial of  suffrage.  To  refuse  to  receive  one's  vote  because 
he  was  born  in  some  particular  country  rather  than  else- 
where, or  because  of  his  color,  or  because  of  any  natural 
quality  or  peculiarity  which  it  would  be  impossible  for  him 
to  overcome,  is  plainly  a  denial  of  suffrage.  But  ability 
to  read  is  within  the  power  of  any  man,  it  is  not  difficult 
to  attain  it,  and  it  is  no  hardship  to  require  it.  On  the 
contrary  the  requirement  only  by  indirection  compels  one 
to  appropriate  a  personal  benefit  he  might  otherwise  neg- 
lect. It  denies  to  no  man  the  suffrage,  but  the  privilege 


188  PRINCIPLES  OF  THE  CONSTITUTIONAL 

is  freely  tendered  to  all,  subject  only  to  a  condition  that  is 
beneficial  in  its  performance  and  light  in  its  burden.  If  a 
property  qualification,  or  the  payment  of  taxes  on  property 
when  one  has  none  to  be  taxed,  is  made  a  condition  to 
suffrage,  there  may  be  room  for  more  question."1 

Mode  of  apportionment 

In  the  first  Congress  representatives  were  apportioned 
among  the  States  according  to  a  rough  estimate  as  to  their 
respective  populations.  Since  that  time  new  apportion- 
ments have  been  based  upon  the  figures  of  the  decennial 
censuses. 

The  first  apportionment  bill  passed  by  Congress  was 
vetoed  by  President  Washington  as  unconstitutional  in 
that  it  provided  for  a  representative  for  each  thirty  thou- 
sand of  population,  the  minimum  fixed  by  the  Constitu- 
tion, and  also  an  additional  number  to  the  States  having 
the  largest  fractions  left  over  after  the  division  was  made. 

Until  1842  fractions  of  populations  left  over  by  divid- 
ing the  populations  of  the  several  States  by  the  number 
selected  for  determining  the  number  of  Representatives, 
went  unrepresented.  Since  that  time,  however,  where 
these  fractions  have  exceeded  a  half  of  the  ratio  number, 
an  additional  representative  has  been  allowed. 

Congressional  districts 

The  division  of  the  States  into  congressional  districts 
for  the  purpose  of  selecting  representatives  is  left  to  the 
State  legislatures.  Congress  has,  however,  provided  that 


1  Principles  of  Constitutional  Law,  ed.  1898,  p.  292.  The  State 
courts  have  very  generally  held  that  reasonable  registration  and 
other  laws  for  the  protection  of  the  voter  against  fraud,  intimida- 
tion, ignorance,  etc.,  are  not  unconstitutional  under  their  several 
State  Constitutions,  as  adding  to  the  qualifications  there  laid  down. 
See  Cooley,  Constitutional  Limitations,  7th  ed.,  Chapter  XVIII. 


LAW  OF  THE  UNITED  STATES  189 

these  districts  shall  be  composed  of  contiguous  territory. 
It  has  become  an  established  rule  of  political  practice, 
though  not  one  of  constitutional  obligation,  that  a  rep- 
resentative shall  be  a  resident  of  the  district  in  which 
he  is  elected.  Representatives  are,  however,  occasionally 
elected  by  districts  in  which  they  do  not  reside,  and  in 
such  cases  there  has  been  no  question  as  to  their  right  to 
sit.  In  certain  cases,  congressmen  at  large,  that  is,  from 
the  whole  State,  are  elected.  This  happens  when  a  State 
has  not  been  divided  into  districts,  or  where,  after  a  re- 
apportionment,  additional  representatives  have  been  al- 
lotted to  a  State  and  that  State  has  not  redistricted  it- 
self so  as  to  provide  the  necessary  additional  districts. 
In  such  cases,  of  course,  only  the  additional  representatives 
are  elected  at  large. 

Suffrage  qualifications 

The  Constitution  provides  that  for  the  election  of  Repre- 
sentatives to  Congress,  "  the  electors  in  each  State  shall 
have  the  qualifications  requisite  for  electors  of  the  most 
numerous  branch  of  the  State  legislature."  This  places 
the  regulation  of  the  suffrage  wholly  within  the  con- 
trol of  the  several  States,  except  for  the  restriction 
placed  upon  them  by  the  Fifteenth  Amendment.  There 
thus  exists  the  rather  curious  fact  that  the  National 
Government,  though  able  to  control  its  citizenship  by 
naturalization,  is  not  able  to  confer  the  suffrage  for  the 
election  even  of  its  own  officials;  whereas  the  States  may 
confer,  and,  indeed,  in  a  number  of  instances,  have  con- 
ferred, this  suffrage  upon  persons  not  citizens  of  the  United 
States. 

That  the  suffrage  is  not  a  necessary  incident  of  Federal 
citizenship  is  declared  by  the  Supreme  Court  in  Minor  v. 
Happersett,2  a  case  in  which  it  was  argued  that  a  woman, 

2  21  Wall.  162;  22  L.  ed.  627.    See  also  United  States  v.  Reese,  92 


190  PRINCIPLES  OF  THE  CONSTITUTIONAL 

a  citizen  of  the  United  States,  was,  as  such,  entitled  to  a 
vote. 

Although,  as  appears  from  the  foregoing,  the  right  of  de- 
termining the  conditions  upon  which  the  suffrage  is  granted 
lies  exclusively  within  the  discretion  of  the  several  States, 
subject  only  to  the  limitation  of  the  Fifteenth  Amendment, 
it  may  happen  that  State  suffrage  laws  may  be  rendered 
invalid  because  in  violation  of  certain  other  general  lim- 
itations laid  upon  the  States.  Thus,  for  example,  a  dis- 
franchising law,  operating  as  to  particular  individuals  as  a 
bill  of  attainder,  or  as  an  ex  post  facto  law,  or  as  tending  to 
destroy  a  republican  form  of  government  in  the  State,  or 
as  favoring  the  citizens  of  certain  States  above  those  of 
other  States,  would  probably  be  held  void.3 

A  distinction  is  to  be  made  between  the  right  to  vote 
for  Representatives  in  Congress  and  the  conditions  upon 
which  that  right  is  granted.  In  the  preceding  paragraphs 
it  has  been  shown  that  the  right  to  vote  is  conditioned  upon 
and  determined  by  State  law.  But  the  right  itself,  as 
thus  determined,  is  a  Federal  right.  That  is  to  say,  the 
right  springs  from  the  provision  of  the  Federal  Constitu- 
tion that  Representatives  shall  be  elected  by  those  who 
have  the  right  in  each  State  to  vote  for  the  members  of  the 
most  numerous  branch  of  the  State  legislature.  The  Con- 
stitution thus  gives  the  right  but  accepts,  as  its  own,  the 
qualifications  which  the  States  severally  see  fit  to  establish 
with  reference  to  the  election  of  the  most  numerous  branch 
of  their  own  several  State  legislatures.4 

U.  S.  214;  23  L.  ed.  563;  United  States  v.  Cruikshank,  92  U.  S.  542; 
23  L.  ed.  588;  Pope  v.  Williams,  193  U.  S.  621;  24  Sup.  Ct.  Rep.  573; 
48  L.  ed.  817,  and  Neal  v.  Delaware,  103  U.  S.  370;  26  L.  ed.  567. 

3  Pope  v.  Williams,  193  U.  S.  621;  24  Sup.  Ct.  Rep.  573;  48  L.  ed. 
817. 

*Ex  parte  Yarbrough,  110  U.  S.  651;  4  Sup.  Ct.  Rep.  152;  28  L. 
ed.  274;  Wiley  v.  Sinkler,  179  U.  S,  58;  21  Sup.  Ct.  Rep.  17;  45  L.  ed. 
84. 


LAW  OF  THE  UNITED  STATES  191 

Federal  control  of  congressional  elections 

According  to  the  Constitution,  "The  times,  places  and 
manner  of  holding  elections  for  Senators  and  Representa- 
tives, shall  be  prescribed  in  each  State  by  the  legislature 
thereof;  but  the  Congress  may  at  any  time  by  law  make 
or  alter  such  regulations,  except  as  to  the  places  of  choos- 
ing Senators. "  5 

In  this  clause  sufficient  authority  is  given  the  Federal 
Government,  should  it  see  fit,  to  assume  entire  and  ex- 
clusive control  of  elections  of  Senators  and  Representa- 
tives; to  establish  by  acts  of  Congress  the  regulations 
governing  the  same,  and  to  apply  and  enforce  these  regu- 
lations by  Federal  officials  and  tribunals. 

The  United  States  government  did  not  exercise  any  of 
the  power  thus  given  it  until  1842^  when  conceiving  the 
system  employed  in  some  States  of  electing  all  the  members 
of  the  House  of  Representatives  upon  a  general  ticket, 
(that  is,  one  according  to  which  each  voter  voted  for  as 
many  Representatives  as  there  were  Representatives  to  be 
elected  from  his  State)  gave  an  undue  power  to  the  political 
party  in  the  majority  in  the  State,  Congress  enacted  a  law 
declaring  that  each  member  should  be  elected  by  a  sepa- 
rate district  composed  of  contiguous  territory.6  In  I860 
an  act  was  passed  regulating  the  election  of  Senators  by 
the  State  legislatures.  In  1873  Congress  again  acted,  pro- 
viding by  law  that  the  election  of  Representatives  in  all 
of  the  States  should  occur  upon  the  same  day,  the  Tuesday 
following  the  first  Monday  in  November,  1876,  and  on  the 
same  day  of  every  second  year  thereafter.7  In  like  mau- 

5  Art.  I,  §  4,  cl.  1. 

6  5  Stat.  at  L.  491. 

7  By  act  of  March  3,  1875,  this  provision  was  made,  "not  to  apply 
to  any  State  that  has  not  yet  changed  its  day  of  election  and  whose 
Constitution  must  be  amended  in  order  to  effect  a  change  in  the  day 
of  election  of  State  officers  in  said  State."    The  elections  in  the  States 
of  Maine,  Vermont,  and  Oregon  are  held  under  this  provision." 


192  PRINCIPLES  OF  THE  CONSTITUTIONAL* 

ner  Congress  fixed  the  day  for  the  election  of  presidential 
electors. 

By  act  of  1872,  amended  by  that  of  February  14,  1899, 
it  is  provided  that  "all  votes  for  Representatives  in  Con- 
gress must  be  by  written  or  printed  ballot  or  voting  ma- 
chine, the  use  of  which  has  been  duly  authorized  by  the 
State  law;  and  all  votes  received  or  recorded  contrary  to 
this  section  shall  be  of  no  effect." 

Other  Federal  laws  prohibit  interference  in  elections  by 
Federal  troops  or  army  or  navy  officers;  8  and  by  the  law  of 
1870  it  is  provided  generally  at  all  elections  that  no  persons 
shall  be  prevented  from  voting  because  of  race,  color  or 
previous  condition  of  servitude.9 

A  general  law  enacted  in  1870  (amended  in  1871),  en- 
titled an  act  "To  enforce  the  Rights  of  Citizens  of  the 
United  States  to  Vote  in  the  Several  States  of  the  Union," 
while  not  itself  establishing  positive  regulations  of  its 
own,  provided  for  the  appointment  of  marshals  and  super- 
visors of  elections  to  see  to  it  that  the  State  laws  governing 
elections  of  Representatives  to  Congress  were  fairly  and 
effectively  executed.10 

This  right  of  oversight  was,  however,  resisted  by  some 
of  the  States  upon  the  ground  that,  though  the  United 
States  might  establish  regulations  of  its  own,  appoint 
officials  to  execute  them,  and  compel  the  officials  of  the 
State  as  well  as  private  citizens  to  conform  to  them,  it  had 
no  right  or  power  to  control  State  officials  in  the  execution 
of  the  laws  enacted  by  their  own  States,  even  when  those 
laws  related  to  the  election  of  members  of  the  National 
Legislature. 

This  controversy  reached  a  judicial  settlement  in  the 

8  Rev.  Stat.,  §§  2003,  5530,  5528. 

9  Rev.  Stat.,  §  2004.    This  law  was  enacted  under  authority  given 
by  the  Fifteenth  Amendment. 

10  Repealed,  Feb.  8,  1894. 


LAW  OF  THE  UNITED  STATES  193 

case  of  Ex  parte  Siebold,11  decided  in  1879,  in  which  the 
Federal  authority  was  upheld,  the  court  holding  that  "the 
State  laws  which  Congress  sees  no  occasion  to  alter,  but 
which  it  allows  to  stand,  are  in  effect  adopted  by  Congress. 
In  Ex  parte  Clarke12  and  Ex  parte  Yarbrough13  the 
doctrine  declared  in  Siebold's  case  is  reaffirmed,  the  court 
saying  in  the  latter  case,  "If  this  government  is  anything 
more  than  a  mere  aggregation  of  delegated  agents  of  other 
States  and  governments,  each  of  which  is  superior  to  the 
General  Government,  it  must  have  the  power  to  protect 
its  elections  from  violence  and  corruption." 

Enforcement  clause  of  the  Fifteenth  Amendment 

By  the  second  section "  of  the  Fifteenth  Amendment 
Congress  is  given  power  to  enact  laws  necessary  for  the 
enforcement  of  the  prohibitions  expressed  in  the  first  sec- 
tion. 

The  Federal  authority  thus  granted,  it  is  to  be  observed, 
has  reference  to  all  elections  whether  State  or  Federal. 
In  this  respect  it  is  thus  much  broader  than  that  given 
in  §  4  of  Article  I.  In  other  respects,  however,  the  power 
granted  is  much  narrower,  for  it  authorizes  Federal  inter- 
vention only  in  cases  where  the  right  to  vote  has  been 
denied  or  abridged  on  account  of  race,  color  or  previous 
condition  of  servitude.  Thus  in  United  States  v.  Reese14 
an  act  of  Congress  which  made  it  a  crime  to  hinder,  delay 
or  restrict  any  citizen  in  doing  any  act  to  qualify  him  to 
vote  or  in  voting  at  an  election,  was  held  void  because 
its  operation  was  not  confined  to  cases  in  which  the  inter- 

11  100  U.S.  371;  25  L.  ed.  717. 

12  100  U.  S.  399;  25  L.  ed.  715. 

13  110  U.  S.  651;  4  Sup.  Ct.  Rep.  152;  28  L.  ed.  274.    In  this  case 
the  law  of  1870  was  held  to  support  an  indictment  charging  a  con- 
spiracy to  intimidate  a  citizen  of  African  descent  from  voting.    See 
Rev.  Stat.,  §§  2208,  5520. 

14  92  U.  S.  214;  23  L.  ed.  5(33. 

13 


194  PRINCIPLES  OF  THE  CONSTITUTIONAL 

ference  was  on  account  of  race,  color  or  previous  condition 
of  servitude. 

In  James  v.  Bowman15  it  was  finally  determined  by  the 
Supreme  Court  that  the  prohibition  of  the  Fifteenth 
Amendment  applied  not  to  private  but  only  to  State  action. 
Therefore  the  court  held  void  an  act  of  Congress  which 
provided  for  the  punishment  of  individuals  who  by  threats, 
bribery  or  otherwise  should  prevent  or  intimidate  others 
from  exercising  the  right  of  suffrage  as  guaranteed  by  the 
Fifteenth  Amendment. 

Disfranchisement  clauses  of  the  Southern  States 

As  has  been  before  adverted  to,  most,  if  not  all,  of  the 
Southern  States  in  which  the  negro  population  is  very  con- 
siderable, have,  by  means  of  constitutional  amendments 
or  in  Constitutions  newly  adopted,  secured  in  effect  the 
almost  total  disfranchisement  of  their  colored  citizens. 
This,  however,  has  been  done,  not  by  disfranchisement 
provisions  expressly  directed  against  the  negroes,  but  by 
requiring  all  voters  to  be  registered,  and  by  placing  condi- 
tions upon  registration  which  very  few  negroes  are  able  to 
meet,  or,  at  any  rate,  to  satisfy  the  registration  officers 
that  they  do  meet  them. 

If  the  courts  may  freely  go  behind  the  terms  of  a  con- 
stitutional clause  to  discover  its  intent,  and  to  construe  it 
by  that  intent,  or  if  they  may  test  its  validity  by  its  actual 
operation  in  practice,  it  would  seem  that  a  possible  op- 
portunity is  afforded  for  holding  void  some  at  least  of  the 
disfranchising  clauses  of  the  Constitutions  of  the  Southern 
States.  As  yet,  however,  no  case  has  been  brought  before 
the  Supreme  Court  in  which  the  court  has  consented  to 
make  this  examination.  As  to  the  circumstances  under 
which  the  court  will  consent  to  go  back  to  the  terms  of  a 
law,  to  determine  its  real  intent  and  effect,  two  interesting 

15 190  U.  S.  127;  23  Sup.  Ct.  Rep.  678;  47  L,  ed,  979, 


LAW  OF  THE  UNITED  STATES  195 

cases  are  Yick  Wo  v.  Hopkins16  and  Williams  v.  Missis- 
sippi.17 In  the  former  case  the  law  or  ordinance  in  ques- 
tion was  held  void  in  that  it  attempted  to  give  to  an  ad- 
ministrative officer  an  arbitrary  discretionary  power,  and 
also  in  that  an  actual  arbitrary  discriminating  use  of  that 
authority  was  shown.  In  Williams  v.  Mississippi  the  court 
declined  to  hold  void  the  State  law  in  question,  the  law 
being  upon  its  face  not  in  violation  of  the  equal  protection 
clause  of  the  Fourteenth  Amendment,  and  no  discrimina- 
tion in  fact  being  proved.  In  Yick  Wo  v.  Hopkins  the 
court  say:  " Though  the  law  itself  be  fair  on  its  face  and 
impartial  in  appearance,  yet,  if  it  is  applied  and  adminis- 
tered by  public  authority  with  an  evil  eye  and  an  unequal 
hand,  so  as  practically  to  make  unjust  and  illegal  discrim- 
inations between  persons  in  similar  circumstances,  material 
to  their  rights,  the  denial  of  justice  is  still  within  the  pro- 
hibition of  the  Constitution."  This  doctrine,  however, 
the  court  say  in  the  Williams  case  is  not  applicable  to  the 
Constitution  of  Mississippi  and  its  statutes.  "They  do 
not  on  their  face  discriminate  between  the  races,  and  it 
has  not  been  shown  that  their  actual  administration  was 
evil,  only  that  evil  was  possible  under  them."18 

Election  of  Senators 
The  Constitution  provides  that  Senators  in  the  Federal 


16 118  U.  S.  356;  6  Sup.  Ct.  Rep.  1064;  30  L.  ed.  220. 

17 170  U.  S.  213;  18  Sup.  Ct.  Rep.  583;  42  L.  ed.  1012. 

18  For  other  attempts  to  obtain  judicial  pronouncements  upon  the 
constitutionality  of  these  disfranchising  clauses  in  the  State  Consti- 
tutions, see  Giles  v.  Harris,  189  U.  S.  475;  23  Sup.  Ct.  Rep.  639;  47 
L.  ed.  909;  Giles  v.  Teasley,  193  U.  S.  146;  24  Sup.  Ct.  Rep.  359;  48 
L.  ed.  655;  Jones  v.  Montague,  194  U.  S.  147;  24  Sup.  Ct.  Rep.  611; 
48  L.  ed.  913.  For  a  general  discussion  of  this  question,  and  the 
possibility  of  effective  congressional  action,  see  the  article  by  Hon. 
John  C.  Rose  in  the  American  Political  Science  Review,  I,  41,  entitled 
"  Negro  Suffrage,  the  Constitutional  Point  of  View." 


196  PRINCIPLES  OF  THE  CONSTITUTIONAL 

Congress  shall  be  chosen  by  the  legislatures  of  the  several 
States,  and  that  "times,  places,  and  manner  of  holding 
elections  for  Senators  and  Representatives  shall  be  pre- 
scribed in  each  State  by  the  legislature  thereof;  but  that 
Congress  may  at  any  time  by  law  make  or  alter  such  regu- 
lations, except  as  to  the  places  of  choosing  Senators." 

Not  until  1866  did  Congress  exercise  the  control  over 
the  election  of  Senators  thus  given  it.  Prior  to  that  date 
the  Senate  had  recognized  the  validity  of  elections  based 
on  majority  votes  in  joint  conventions  of  the  two  houses  of 
the  State  legislatures,  where  a  concurrent  choice  of  the  two 
houses  sitting  separately  was  not  obtained.  It  was  held, 
however,  in  the  case  of  James  Harlan,  1857,  that  in  such 
joint  conventions  a  quorum  of  both  houses  must  be  present. 

By  the  act  of  1866  the  entire  matter  was  federally  de- 
termined. The  text  of  this  law  is  given  in  the  footnote.19 

13  40  Rev.  Stat.,  §§  14-19. 

Section  14.  The  legislature  of  each  State  which  is  chosen  next 
preceding  the  expiration  of  the  time  for  which  any  Senator  was 
elected  to  represent  such  State  in  Congress  shall,  on  the  second 
Tuesday  after  the  meeting  and  organization  thereof,  proceed  to 
elect  a  Senator  in  Congress. 

Section  15.  Such  election  shall  be  conducted  in  the  following 
manner:  Each  house  shall  openly  by  viva-voce  vote  of  each  member 
present,  name  one  person  for  Senator  in  Congress  from  such  State, 
and  the  name  of  the  person  so  voted  for,  who  receives  a  majority  of 
the  whole  number  of  votes  cast  in  each  house,  shall  be  entered  on 
the  journal  of  that  house  by  the  clerk  or  secretary  thereof;  or  if  either 
house  fails  to  give  such  majority  to  any  person  on  that  day,  the  fact 
shall  be  entered  on  the  journal.  At  twelve  o'clock  meridian  of  the 
day  following  that  on  which  proceedings  are  required  to  take  place 
as  aforesaid,  the  members  of  the  two  houses  shall  convene  in  joint 
assembly,  and  the  journal  of  each  house  shall  then  be  read,  and  if 
the  same  person  has  received  a  majority  of  all  the  votes  in  each 
house,  he  shall  be  declared  duly  elected  Senator.  But  if  the  same 
person  has  not  received  a  majority  of  the  votes  in  each  house,  or  if 
either  house  has  failed  to  take  proceedings  as  required  by  this  section, 
the  joint  assembly  shall  then  proceed  to  choose,  by  a  viva-voce  vote 


LAW  OF  THE  UNITED  STATES  197 

When  there  is  a  dispute  as  to  which  of  two  contesting 
State  bodies  is  the  de  jure  legislature,  the  United  States 
Senate,  while  having  the  power  to  exercise  its  own  judg- 
ment, will  ordinarily  recognize  that  body  which  is  accepted 
as  de  jure  by  the  other  State  authorities. 

Vacancies  in  the  Senate 

It  is  provided  by  the  Constitution  that  if  vacancies  in 
the  Senate  "  happen  by  resignation  or  otherwise,  the  execu- 
tive thereof  may  make  temporary  appointments  until  the 
next  meeting  of  the  legislature,  which  shall  then  fill  such 
vacancies." 

There  has  been  considerable  difference  of  opinion  as  to 
the  proper  construction  to  be  given  to  the  term  " happen" 
as  employed  in  the  foregoing  constitutional  clause.  By 
some  it  has  been  argued  that  a  vacancy  "  happens  "  when- 
ever, for  any  reason  whatever,  there  is  a  vacancy  in  the 
representation  of  a  State  in  the  Senate.  By  others,  it  is 
asserted,  that  where  a  State  legislature  has  had  the  op- 
portunity to  elect  a  Senator  and  has  failed  to  do  so,  it  can- 
not be  said  that  a  vacancy  has  "  happened,"  but  that  it  has 
been  present  and  brought  about  by  the  non-action  of  the 
State  electoral  body,  and  that  that  body  has  thus  impliedly 
shown  that  it  does  not  desire  the  vacancy  to  be  filled.  This 
was  the  position  taken  by  the  Senate  in  1900  in  the  case  of 
Senator  Quay  from  Pennsylvania. 

The  senatorial  practice  has  not  been  uniform  in  respect 
to  executive  appointments  to  fill  vacancies,  but  its  action 


of  each  member  present,  a  person  for  Senator,  and  the  person  who 
receives  a  majority  of  all  the  votes  of  the  joint  assembly,  a  majority 
of  all  the  members  elected  to  both  houses  being  present  and  voting, 
shall  be  declared  duly  elected.  If  no  person  receives  such  majority 
on  the  first  day,  the  joint  assembly  shall  meet  at  twelve  o'clock 
meridian  of  each  succeeding  day  during  the  session  of  the  legislature, 
and  shall  take  at  least  one  vote,  until  a  Senator  is  elected. 


198  PRINCIPLES  OF  CONSTITUTIONAL  LAW 

in  the  Quay  case  has  probably  determined  the  doctrine 
for  the  future. 

Vacancies  in  the  House  of  Representatives 

When  vacancies  happen  in  the  representation  from  any 
State,  it  is  provided  that  the  executive  authority  thereof 
shall  issue  writs  of  election  to  fill  such  vacancies. 

Vacancies  are  occasioned  by  death,  by  resignation,  or  by 
acceptance  of  a  disqualifying  office. 


CHAPTER  XXIX 

THE      PROCESS     OF      LEGISLATION    AS      CONSTITUTIONALLY 
DETERMINED 

Constitutional  provisions 

To  a  certain  extent  the  manner  of  conducting  business 
in  Congress,  and  the  processes  of  legislation  are  determined 
by  the  Constitution.  It  is  provided  that  the  Vice  Presi- 
dent shall  be  the  president  of  the  Senate,  but  shall  have 
no  vote  except  in  case  of  a  tie.  The  Senate,  however,  is 
empowered  to  choose  its  other  officers,  including  the  Presi- 
dent pro  tempore  to  preside  in  the  absence  of  the  Vice 
President  or  when  he  is  exercising  the  office  of  President 
of  the  United  States.  The  House  is  empowered  to 
choose  all  of  its  officers,  including  the  presiding  officer,  the 
Speaker. 

It  is  required  that  Congress  shall  assemble  at  least  once 
in  every  year,  and  that  such  meeting  shall  be  on  the  first 
Monday  in  December,  unless  by  law  a  different  day  is 
appointed. 

A  majority  of  each  House  is  fixed  as  a  quorum  to  do 
business,  but  a  smaller  number  is  competent  to  adjourn 
from  day  to  day,  and  to  compel  the  attendance  of  absent 
members  in  such  manner  and  under  such  penalties  as  each 
House  may  provide. 

Each  House  is  authorized  to  determine  the  rules  of  its 
procedure,  to  punish  its  members  for  disorderly  behavior, 
and  with  the  concurrence  of  two-thirds  to  expel  a  member. 

Neither  House  may,  without  the  consent  of  the  other 

199 


200  PRINCIPLES  OF  THE  CONSTITUTIONAL 

House,  adjourn  for  more  than  three  days,  nor  to  any  other 
place  than  that  in  which  the  Houses  are  sitting. 

Each  House  is  required  to  keep  a  journal  of  its  proceed- 
ings, and  from  time  to  time  to  publish  the  same,  excepting 
such  parts  as  may  in  its  judgment  require  secrecy;  and 
it  is  ordered  that,  at  the  desire  of  one-fifth  of  those  present, 
the  yeas  and  nays  of  members  of  either  House  on  any  ques- 
tion shall  be  entered  on  this  journal. 

The  foregoing  constitutional  provisions  impose  duties 
upon  and  grant  powers  to  the  two  Houses  of  Congress,  the 
fulfillment  and  exercise  of  which  are  placed  within  the 
discretion  of  the  Houses  themselves.  Very  few  questions 
arising  under  these  clauses  have,  therefore,  or  could  have 
been,  brought  before  the  courts.  One  important  point 
has,  however,  been  raised  and  deserves  attention.  This 
is  discussed  in  the  next  section. 

Conclusiveness  of  the  records  of  congressional  proceedings 
In  a  few  instances  the  validity  of  laws  purporting  to  have 
been  enacted  by  Congress  has  been  questioned  upon  the 
ground  that  they  have  not,  in  fact,  been  enacted  by  that 
body  in  accordance  with  the  requirements  of  the  Con- 
stitution. This  has  necessitated  the  examination  of  the 
records  of  the  proceedings  of  Congress  and  a  determination 
of  the  evidential  value  to  be  given  to  those  proceedings. 

In  Field  v.  Clark1  it  was  contended  by  the  appellants 
that  an  enrolled  act  in  the  custody  of  the  Secretary  of 
State,  and  appearing  upon  its  face  to  be  a  law  enacted  by 
Congress,  was  a  nullity,  because,  as  was  shown  by  the 
records  of  proceedings  in  Congress,  and  the  reports  of 
committees,  including  that  of  the  committee  on  conference, 
a  section  of  the  bill  as  finally  passed  was  not  in  the  bill 
authenticated  by  the  signatures  of  the  presiding  officers  of 


143  U.  S.  649;  12  Sup.  Ct.  Rep.  495;  36  L.  ed.  294. 


LAW  OF  THE  UNITED  STATES  201 

the  two  Houses  and  signed  by  the  President.  The  court, 
however,  declared  that  the  attestation  of  the  Speaker 
of  the  House  and  of  the  President  of  the  Senate,  and  signa- 
ture of  the  President  of  the  United  States,  and  the  deposit 
of  a  measure  as  a  law  in  the  public  archives  are  to  be  taken 
as  unimpeachable  evidence  that  the  constitutional  re- 
quirements for  legislation  have  been  satisfied,  and  the 
measure  as  thus  certified  to  has  received  the  approval  of 
the  legislative  branch  of  the  government.  The  opinion 
concludes:  "We  are  of  the  opinion,  for  the  reasons  stated, 
that  it  is  not  competent  for  the  appellants  to  show,  from  the 
journals  of  either  House,  from  the  reports  of  committees, 
or  from  other  documents,  printed  by  authority  of  Con- 
gress, that  the  enrolled  bill,  designated  '  H.  R.  9416,'  as 
finally  passed,  contained  a  section  that  does  not  appear 
in  the  enrolled  Act  in  the  custody  of  the  State  Depart- 
ment." 

In  United  States  v.  Ballin2  the  evidential  value  of  records 
of  congressional  proceedings  was  again  considered,  the 
court  saying:  "Assuming  that  .  .  .  reference  may  be  had 
to  the  Journal  .  .  .  and  assuming,  though  without  decid- 
ing, that  the  facts  which  the  Constitution  requires  to  be 
placed  on  the  Journal  may  be  appealed  to  in  the  ques- 
tion whether  a  law  has  been  legally  enacted,  yet  if  refer- 
ence may  be  had  to  such  Journal,  it  must  be  assumed  to 
speak  the  truth." 

Constitutional  force  of  rules  of  the  House  and  Senate 

In  United  States  v.  Ballin  was  also  raised  an  interesting 
question  as  to  the  constitutional  validity  of  a  certain  rule 
of  procedure  adopted  by  the  House  of  Representatives. 
As  to  this  the  court,  in  its  opinion,  say:  "The  Constitu- 
tion empowers  each  House  to  determine  its  rules  of  pro- 


2 144  U.  S.  1;  12  Sup.  Ct.  Rep.  507;  36  L.  ed.  321. 


202  PRINCIPLES  OF  THE  CONSTITUTIONAL 

ceedings.  It  may  not  by  its  rules  ignore  constitutional 
restraints  or  violate  fundamental  rights,  and  there  should 
be  a  reasonable  relation  between  the  mode  or  method  of 
proceeding  established  by  the  rule  and  the  result  which  is 
sought  to  be  attained.  But  within  these  limitations  all 
matters  of  method  are  open  to  the  determination  of  the 
House,  and  it  is  no  impeachment  of  the  rule  to  say  that 
some  other  method  would  be  better,  more  accurate,  or 
even  more  just.  It  is  no  objection  to  the  validity  of  a 
rule  that  a  different  one  has  been  prescribed  and  in  force 
for  a  length  of  time.  The  power  to  make  rules  is  not  one 
which  once  exercised  is  exhausted.  It  is  a  continuous 
power,  always  subject  to  be  exercised  by  the  House,  and 
within  the  limitations  suggested,  absolute  and  beyond 
the  challenge  of  any  other  body  or  tribunal." 

Revenue  measures 

The  Constitution  provides  that  "all  bills  for  raising 
revenue  shall  originate  in  the  House  of  Representatives; 
but  the  Senate  may  propose  or  concur  with  amendments 
as  on  other  bills."  3 

This  provision  has  given  rise  to  frequent  controversies 
between  the  two  Houses  of  Congress,  but  has  but  seldom 
been  passed  upon  by  the  courts.  No  formal  definition  of 
a  revenue  measure  has  been  given  by  the  Supreme  Court, 
but  in  Twin  City  National  Bank  v.  Nebeker  4  the  court,  in 
effect,  held  that  a  bill,  the  primary  purpose  of  which  is 
not  the  raising  of  revenue,  is  not  a  measure  that  must 
originate  in  the  House,  even  though,  incidentally,  a  revenue 
will  be  derived  by  the  United  States  from  its  execution. 

The  House  has,  upon  a  number  of  occasions,  refused  to 
agree  to  or  to  consider  senatorial  amendments  to  revenue 


3  Art.  I,  §  7,  cl.  1. 

< 167  U.  S.  196;  17  Sup.  Ct.  Rep.  766;  42  L.  ed.  134. 


LAW  OF  THE  UNITED  STATES  203 

measures  upon  the  ground  that  the  amendments  have 
enlarged  the  scope  or  changed  the  character  of  the  measure 
as  originated  in  the  House.  Especially  has  the  House 
denied,  and  the  Senate  insisted  upon  its  right  to  originate 
measures  which  repeal  a  law  or  portion  of  a  law  imposing 
taxes,  duties,  imposts  or  excises.5 

It  would  seem  that  the  Senate  has  full  power  to  originate 
measures  appropriating  money  from  the  Federal  treasury. 
This  right  has  at  times  been  denied  by  certain  members  of 
the  House,6  but  the  House  has  not  itself  formally  adopted 
this  negative  view.  In  Flint  v.  Stone  Tracy  Co.,7  the  court 
say  with  reference  to  the  corporation  tax  law  which  con- 
stitutes §  38  of  the  Tariff  Act  of  August  5,  1909,  and  which 
originated  in  the  Senate  as  an  amendment  to  the  law  as 
passed  by  the  House,  that  the  act  itself  having  originated 
in  the  lower  branch  of  Congress,  and  the  amendment  being 
germane  to  the  subject-matter  of  the  bill,  it  was  not  be- 
yond the  power  of  the  Senate  to  propose  it. 

Presidential  participation  in  lawmaking 

The  duties  and  powers  of  the  President  with  reference 
to  the  enactment  of  laws  are  stated  in  Clause  2  of  §  7  of 
Article  I  of  the  Constitution. 


8  See  generally  upon  this  subject  Hind's  Precedents  of  the  House  of 
Representatives,  Chapter  XLVII. 

6  See  especially  the  views  of  the  minority  in  House  Report,  147, 
46th  Cong.,  3d  Sess.    Also,  Hinds,  §  1500. 

7  220  U.  S.  107;  31  Sup.  Ct.  Rep.  342.     The  court,  however,  add: 
"In  thus  deciding  we  do  not  wish  to  be  regarded  as  holding  that 
the  journals  of  the  House  and  Senate  may  be  examined  to  invali- 
date an  act  which   has  been  passed  and  signed  by  the  presiding 
officers  of  the  House  and  Senate,  and  approved  by  the  President, 
and  duly  deposited  with  the  State  Department."    Citing:  Field  v. 
Clark,  143  U.  S.  649;  12  Sup.  Ct.  Rep.  495;  36  L.  ed.  294;  Harwood 
v.  Wentworth,  162  U.  S.  547;  16  Sup.  Ct.  Rep.  890;  40  L.  ed.  1069; 
Bank  v.  Nebeker,  167  U.  S.  196;  17  Sup.  Ct.  Rep.  766;  42  L.  ed. 
134. 


204  PRINCIPLES  OF  CONSTITUTIONAL  LAW 

The  Federal  Executive  has  never  attempted  the  exer- 
cise of,  or  claimed,  the  right  to  veto  parts  of  measures  sub- 
mitted to  him  by  Congress,  and  to  approve  the  remainder. 
Because  thus  bound  to  accept  or  reject  a  bill  as  a  whole, 
Congress  has  at  times  attempted  to  force  the  hand  of  the 
President  by  incorporating  into  a  measure  which  it  is 
known  he  will  feel  almost  obligated  to  sign  provisions 
which  it  is  believed  he  would  disapprove  if  submitted  to 
him  as  independent  propositions.  At  times,  however, 
these  so-called  "  riders  "  have  led  to  the  veto  of  the  entire 
bill.8 

It  cannot  be  said  to  be  definitely  established,  but  the 
better  view  would  seem  to  be  that  the  President  may  not 
sign  a  bill  after  the  adjournment  of  Congress.9  It  has 
been  declared,  however,  that  he  may  sign  during  a  recess 
of  that  body.10 

8  For  a  full  discussion  of  the  distinctions  between  acts,  and  joint 
and  concurrent  resolutions,  see  a  report  of  the  Senate  Judiciary 
Committee,  Sen.  Rpt.,  Vol.  1335,  54th  Cong.,  2d  Sess.     Joint  res- 
olutions, being  in  general  legislative  in  character,  require  the  Presi- 
dent's signature. 

9  Willoughby,  United  States  Constitutional  Law,  §  257. 

10  La  Abra  Silver  Mining  Co.  v.  United  States,  175  U.  S.  423;  20 
Sup.  Ct.  Rep.  168;  44  L.  ed.  223. 


CHAPTER  XXX 

THE  GENERAL  POWERS  OF  CONGRESS 

General  powers 

In  the  chapters  which  are  immediately  to  follow  will  be 
taken  up  seriatim  the  legislative  powers  of  Congress  ex- 
cept in  so  far  as  these  powers  have  been  considered  inci- 
dentally elsewhere  in  this  treatise. 

In  addition  to  their  legislative  powers  the  Houses  of 
Congress  have  certain  other.powers,  judicial  or  executive  in 
character,  such  as,  for  example,  with  reference  to  impeach- 
ments, to  punishing  their  members  for  disorderly  conduct, 
or  their  expulsion  if  necessary,  the  determination  of  con- 
tested elections,  etc.  Each  House  of  Congress  has  also, 
it  has  been  held,  the  power  to  obtain  the  information  nec- 
essary for  an  intelligent  exercise  of  its  lawmaking  power, 
and  for  this  purpose  to  summon  witnesses,  and  compel  the 
production  of  documents,  and  to  punish  as  contempt  dis- 
obedience to  orders  thus  given.  These  non-legislative 
duties  are  discussed  elsewhere  in  this  treatise,  and  espe- 
cially in  the  chapters  dealing  with  the  Separation  of 
Powers. 

In  some  cases  the  powers  granted  by  the  Constitution 
are  also  made  obligations,  and,  in  general,  it  may  be  said 
that  where  legislation  is  necessary  to  make  effective  the 
provisions  of  the  Constitution  there  is  laid  upon  Congress 
the  constitutional  obligation  to  enact  this  legislation.  At 
the  same  time  it  must  be  said  that  this  obligation  is  an 
"imperfect"  one  in  that  no  legal  means  exist  for  compelling 
its  performance  or  providing  for  what  shall  be  done  in  the 

205 


206  PRINCIPLES  OF  THE  CONSTITUTIONAL     * 

event  of  its  non-performance.  Thus  the  Constitution 
provides  that  "The  judicial  power  of  the  United  States 
shall  be  vested  in  one  Supreme  Court,  and  in  such  inferior 
courts  as  Congress  may  from  time  to  time  ordain  and  estab- 
lish." Should  Congress  fail  by  legislation  to  establish 
these  inferior  judicial  tribunals  and  to  clothe  them  with 
jurisdiction,  there  would  be  no  constitutional  means  of 
compelling  it  to  do  so.  Indeed,  by  failing  as  well  to  pro- 
vide for  the  appointment  and  remuneration  of  Justices 
of  the  Supreme  Court,  Congress  might  render  impossible 
the  exercise  of  any  Federal  judicial  power  whatever.  Once 
established  the  Supreme  Court,  by  the  immediate  effect 
of  constitutional  provision,  has  the  original  jurisdiction 
provided  for  in  §  2  of  Article  I,  but  it  is  unable  to  exercise 
any  appellate  jurisdiction  by  way  of  appeals  from  either 
the  State  or  lower  Federal  courts  except  as  Congress  has 
by  statute  provided. 

This  is  but  a  single  illustration  of  many  that  might  be 
given  of  the  manner  in  which  the  existence  and  adminis- 
tration of  the  Federal  Government  is  absolutely  dependent 
upon  the  action  of  Congress.  For  it  may  be  laid  down  as 
a  principle  which  admits  of  no  exceptions  that  no  legal 
means  exist  for  compelling  a  legislative  body  to  enact  a 
given  piece  of  legislation,  or,  indeed,  to  perform  any  of  its 
functions.1 

Though,  in  many  respects,  not  self-executing,  and  the 
obligations  created  by  its  provisions  not  enforcible  by 
legal  process,  the  Federal  Constitution  is,  it  is  to  be  re- 
peated, in  all  other  respects  a  law  and  directly  enforcible 


1  The  assertion  has  been  made  that  should  Congress  fail  to  call  a 
convention  for  the  amendment  of  the  Constitution  a  request  to  that 
effect  having  been  made  by  two-thirds  of  the  States,  a  mandamus 
might  be  issued  to  compel  it  to  do  so,  the  function  of  Congress  in 
the  premises  being  a  purely  ministerial  one.  The  better  view  would, 
however,  seem  to  be  that  the  writ  would  not  be  issued. 


LAW  OF  THE  UNITED  STATES  207 

as  such  in  the  courts  of  the  land.  It  is,  as  has  been  already 
said,  a  law  legislatively  enacted  by  the  State  legislatures 
or  the  State  conventions  which,  quoad  hoc  acting  as  a 
national  law-making  body,  established  it  and  ratified  the 
amendments  to  it. 


CHAPTER  XXXI 

FEDERAL   POWERS   OF   TAXATION 

Taxes  defined 

Taxes  have  been  defined  by  an  eminent  authority  to  be 
" burdens  or  charges  imposed  by  the  legislative  power  upon 
persons  or  property  to  raise  money  for  public  purposes."  1 
The  same  author  in  another  work  observes  that  they 
"differ  from  forced  contributions,  loans,  and  benevolences 
of  arbitrary  and  tyrannical  periods  in  that  they  are  levied 
by  authority  of  law,  and  by  some  rule  of  proportion  which 
is  intended  to  insure  uniformity  of  contribution,  and  a  just 
apportionment  of  the  burdens  of  government." 

The  power  to  tax  is  ordinarily  spoken  of  as  an  incident 
of  sovereignty,  or,  as  a  sovereign  power.  A  more  exact 
statement  is,  however,  that  inasmuch  as  the  raising  of  a 
certain  amount  of  revenue  is  essential  to  the  existence  and 
operation  of  a  public  governing  body,  that  body  has,  even 
in  default  of  express  constitutional  grant,  an  implied  power 
to  compel  those  subject  to  its  authority  to  contribute  the 
financial  means  necessary  to  its  support. 

The  levying  of  a  tax,  that  is  to  say,  the  determination 
that  a  given  tax  shall  be  imposed,  assessed  and  collected 
in  a  certain  manner,  is  a  legislative  function. 

The  determination  of  the  precise  amount  of  the  tax 
which  each  individual  or  piece  of  property  shall  pay  accord- 
ing to  the  general  rule  legislatively  laid  down,  is  an  ad- 


1  Cooley,  Constitutional  Limitations,  7th  ed.,  678. 

2  Taxation,  Chapter  I. 

208 


LAW  OF  THE  UNITED  STATES  209 

ministrative  act.3  The  determination  whether  the  legis- 
lative rule  is,  constitutionally  speaking,  a  proper  one,  and 
whether  the  administrative  officials  have  followed  it,  as 
well  as  whether  they  have  observed  all  the  other  require- 
ments of  law,  is,  of  course,  a  judicial  function.  Thus  the 
administrative  official  must  in  all  cases  in  his  assessments 
both  as  to  classes  of  persons  and  kinds  of  property,  and  as 
to  rates  of  taxation,  be  guided  by  the  law.  Upon  the  other 
hand,  the  legislature,  when  levying  ad  valorem  taxes,  has 
not.  the  power  itself,  generally  speaking,  to  declare  the 
value  of  a  specific  piece  or  specific  pieces  of  property  for 
taxation  purposes.  Where,  however,  taxes  are  laid  not 
according  to  values  of  property,  but  upon  persons,  as  a 
capitation  tax,  or  upon  occupations,  as  license  fees  and 
tolls,  or  upon  documents,  as  stamp  duties,  or  upon  number 
or  quantities  of  goods  ("specific"  taxes),  the  legislature 
fixes  in  each  case  the  amount  of  the  contribution. 

Taxation  and  eminent  domain 

The  levying  and  collection  of  taxes  amounts,  of  course, 
to  the  taking  of  private  property  for  a  public  use,  but  the 
taxing  power  is  distinct  from  that  of  eminent  domain. 
When  property  is  taken  in  exercise  of  the  latter  power  the 
Fifth  Amendment  requires  that  the  Federal  Government 
shall  make  just  compensation.  When,  however,  property 
is  taken  under  the  taxing  power  the  persons  so  taxed  are 
held  compensated  by  the  special  or  general  benefits  re- 
ceived from  the  existence  and  operations  of  the  govern- 
ment. 

The  extent  of  the  taxing  power 

The  power  to  tax  is,  from  its  very  nature,  one  of  the 
most  important  powers  possessed  by  the  State.  Aside 


3  Meriwether  v.  Garrett,  102  U.  S.  472;  26  L.  ed.  197. 
14 


210  PRINCIPLES  OF  THE  CONSTITUTIONAL 

from  express  constitutional  limitations,  the  power  places 
every  person,  every  occupation,  and  all  forms  of  property 
subject  to  such  pecuniary  burdens  as  the  legislature  may 
see  fit  to  impose,  the  manner  of  apportioning  and  enforcing 
the  collections  of  the  contributions  levied  being  within 
the  discretion  of  the  law-making  body  which  imposes  them. 
A  classic  statement  of  the  extent  of  the  taxing  power  is 
that  of  Marshall  in  McCulloch  v.  Maryland.4  Marshall 
says:  "The  power  of  taxing  the  people  and  their  property 
is  essential  to  the  very  existence  of  the  government,  and 
may  be  legitimately  exercised  on  the  objects  to  which  it  is 
applicable  to  the  utmost  extent  to  which  the  government 
may  choose  to  carry  it.  The  only  security  against  the 
abuse  of  this  power  is  found  in  the  structure  of  the  govern- 
ment itself.  In  imposing  a  tax,  the  legislature  acts  upon 
its  constituents.  This  is,  in  general,  a  sufficient  security 
against  erroneous  and  oppressive  taxation.  The  people 
of  a  State,  therefore,  give  to  their  government  a. right  of 
taxing  themselves  and  their  property,  and  as  the  exigencies 
of  the  government  cannot  be  limited,  they  prescribe  no 
limit  to  the  exercise  of  this  right,  resting  confidently  on 
the  interest  of  the  legislator  and  on  the  influence  of  the 
constituents  over  their  representatives  to  guard  themselves 
against  its  abuse."  "The  power  to  tax,"  Marshall  con- 
cludes, "  involves  the  power  to  destroy." 

The  use  of  the  taxing  power,  not  for  revenue  but  for  regula- 
tion 

By  definition  and  by  primary  purpose  a  tax  is  a  means 
whereby  a  public  governing  power  seeks  to  secure  a  reve- 
nue. It  has  been  generally  held,  however,  that  a  tax  may 
be  levied  avowedly  and  exclusively  not  for  revenue  but  as  a 
means  for  regulating  a  matter,  which  is  within  the  legisla- 


4  4  Wh.  316;  4  L.  ed.  579. 


LAW  OF  THE  UNITED  STATES  211 

ture's  power  to  control.  Thus  in  Veazie  Bank  v.  Fenno  5 
the  power  of  Congress  to  levy  a  tax  as  a  means  of  regulat- 
ing the  currency  was  upheld.  So,  also,  in  Edye  v.  Robert- 
son (Head  Money  Cases)6  a  law  imposing  a  tax  upon  own- 
ers of  vessels  bringing  immigrants  to  this  country  was  held 
to  be  a  regulation  of  commerce  rather  than  a  revenue 
measure. 

In  these  cases  it  is  seen  that  the  view  taken  is  that 
though  the  laws  levy  a  contribution  to  the  State  and  thus 
result  in  a  revenue  to  the  State,  they  are  not,  correctly 
speaking,  tax  laws  at  all.  Not  being,  in  fact  tax  laws, 
they  are  not  subject  to  the  constitutional  limitations  upon 
revenue  measures  as  regards  uniformity,  apportionment, 
etc. 

A  proposition  different  from  the  one  just  discussed,  is 
that  a  legislature,  by  a  law  framed  as  a  tax  measure,  may, 
in  effect,  subject  to  regulation  or  even  to  destruction 
an  enterprise  over  which  it  has  no  direct  power  or  con- 
trol. This  point  was  squarely  raised,  with  reference  to  the 
power  of  the  Federal  Government  in  the  comparatively 
recent  case  of  McCray  v.  United  States,7  decided  in 
1904. 

In  this  case  was  questioned  the  constitutionality  of  a 
law  of  Congress  levying  a  tax  of  ten  cents  a  pound  upon 
oleomargarine,  artificially  colored  to  look  like  butter. 
The  contention  was  that  this  rate  was  so  high  as  to  be 
surely  prohibitive  of  the  manufacture  and  sale  of  such 
oleomargarine,  and  that,  therefore,  it  was  to  be  presumed 
that  the  motive  of  those  enacting  the  law  was  not  that  a 


5  8  Wall.  533;  19  L.  ed.  482. 

6 112  U.  S.  580;  5  Sup.  Ct.  Rep.  247;  28  L.  ed.  798. 

7 195  U.  S.  27;  24  Sup.  Ct.  Rep.  769;  49  L.  ed.  78.  See  a  valuable 
article  in  Michigan  Law  Review,  VI,  277,  entitled  "May  Congress 
Levy  Money  Exactions  Designated  Taxes,  Solely  for  the  Purpose 
of  Destruction?" 


212  PRINCIPLES  OF  THE  CONSTITUTIONAL 

*v_ 

revenue  should  be  secured  for  the  Federal  Government, 
but  that  the  manufacture  should  be  prevented;  and  this, 
it  was  argued,  rendered  the  law  an  unconstitutional  effort 
upon  the  part  of  Congress  to  regulate  the  manufacture  of 
a  commodity  within  the  States.  The  Supreme  Court, 
however,  held  that  the  law  being  upon  its  face  a  revenue 
measure,  its  ultimate  effect  or  the  motive  of  its  enactors 
might  not  be  judicially  inquired  into.  The  scope  and  effect 
of  a  law  may  be  inquired  into,  the  court  say,  to  determine 
whether  the  act  is,  in  general  character,  within  the  legis- 
lative power  of  Congress,  but,  that  determined  in  the 
affirmative,  the  measure  may  not  be  invalidated  because 
of  consequences  that  may  arise  from  its  enforcement. 

The  McCray  case  is,  it  will  be  seen,  in  one  respect  the 
opposite  of  Veazie  v.  Fenno  and  the  Head  Money  Cases, 
in  that  it  holds  the  law  in  question  to  be  a  tax  law  and 
constitutional  because  it  is  such;  whereas,  in  the  earlier 
cases,  the  laws  were  justified  as  being,  in  real  character, 
not  revenue  measures  at  all,  and,  therefore,  not  subject 
to  the  limitations  constitutionally  imposed  upon  Congress 
when  enacting  revenue  laws. 

Federal  powers  of  taxation 

By  §  8  of  Article  I  of  the  Constitution,  Congress  is  given 
the  general  power  "to  lay  and  collect  taxes,  duties,  im- 
posts and  excises."  8 

Duty  and  impost  have  a  broad  signification  which  makes 
them  practically  synonymous  with  the  general  term  tax; 
more  generally,  however,  they  are  given  a  narrower  mean- 
ing according  to  which  they  become  equivalent  to  customs 


8  The  clause  continues:  "to  pay  the  debts  and  provide  for  the 
common  defense  and  general  welfare  of  the  United  States."  This 
is  not  a  grant  of  power.  Cf.  Story,  Commentaries,  §§  902-926.  See, 
also,  The  License  Tax  Cases,  5  Wall.  462;  18  L.  ed.  497;  Knowlton 
v.  Moore,  178  U.  S.  41;  20  Sup.  Ct.  Rep.  747;  44  L.  ed.  969. 


LAW  OF  THE  UNITED  STATES  213 

or  customs  dues,  that  is,  to  taxes  levied  upon  goods  im- 
ported from  foreign  countries. 

An  excise  is  an  inland  tax  upon  manufacture  or  retail 
sale  of  commodities.  It  is  thus  often  termed  a  consump- 
tion tax.  In  the  United  States  the  excise  taxes  are  more 
generally  known  as  internal  revenue  duties.9 

The  general  power  to  levy  taxes  being  given,  the  Con- 
stitution enumerates  duties,  imposts  and  excises  as  the 
classes  of  taxes  which  are  to  be  levied  uniformly  through- 
out the  United  States. 

Limitations  upon  the  Federal  taxing  power 

The  power  of  taxation  given  to  the  Federal  Government 
is  comprehensive  and  complete,  embracing  all  possible 
subjects  and  modes  of  taxation  except  in  so  far  as  the  Con- 
stitution, in  other  clauses,  expressly  limits  the  power,  or 
except  in  so  far  as  limitations  may  be  implied  from  the 
general  character  of  the  American  constitutional  system. 
The  express  limitations  are:  (1)  That  "all  duties,  imposts 
and  excises  shall  be  uniform  throughout  the  United  States;" 
(2)  that  "no  capitation  or  other  direct  tax  shall  be  laid, 
unless  in  proportion  to  the  census  or  enumeration  herein- 
before directed  to  be  taken;"  and  (3)  that  "no  tax  or  duty 
shall  be  laid  on  articles  exported  from  any  State."10 

The  implied  limitations  upon  the  Federal  taxing  power 
are  those  that  relate  to  the  general,  if  not  absolute,  ex- 
emption of  State  governmental  agencies  from  Federal 
interference,  whether  by  way  of  taxation  or  otherwise, 
and  those  arising  out  of  all  the  express  limitations  upon 
the  Federal  Government,  which,  of  course,  are  as  operative 
when  the  Federal  Government  is  exercising  its  taxing 


9  For  a  general  discussion  of  the  various  definitions  of  excise,  duty 
and  imposts,  see  Pacific  Ins.  Co.  v.  Soule,  7  Wall.  433;  19  L.  ed.  95. 

10  Art.  I,  §  8,  cl.  1;  Art.  I,  §  7.  cl.  4;  Art.  I,  §  8,  cl.  5. 


214  PRINCIPLES  OF  THE  CONSTITUTIONAL 

power,  as  it  is  when  employing  any  of  the  other  rights 
possessed  by  it.  Thus,  for  example,  the  United  States 
may  not,  under  the  guise  of  a  tax,  take  property  without 
due  process  of  law. 

Due  process  of  law  and  taxation 

We  have  already  seen  that  the  taking  of  private  prop- 
erty by  the  State  in  exercise  of  the  taxing  power  is  not 
brought  within  the  constitutional  requirement,  applicable 
in  the  case  of  property  taken  under  the  power  of  eminent 
domain,  that  direct  pecuniary  compensation  therefor  shall 
be  made.  In  like  manner  the  taking  of  private  property 
in  the  form  of  taxes,  is  not,  in  itself,  a  taking  of  property 
without  due  process  of  law.11 

Though  the  taking  of  the  property  in  the  form  of  a  tax 
is  thus  not  in  itself  a  taking  without  due  process,  it  may 
become  such  by  reason  of  the  purpose  for  which,  or  the 
manner  in  which,  the  tax  is  levied,  assessed  and  collected. 

Due  process  of  law  obliges  the  United  States  as  well  as 
the  individual  States,  in  the  exercise  of  their  taxing  powers, 
to  conform  to  the  following  rules: 

1.  That  the  tax  shall  be  for  a  public  purpose. 

2.  That  it  shall  operate  uniformly  upon  those  subject 
to  it. 

3.  That  either  the  person  or  the  property  taxed  shall 
be  within  the  jurisdiction  of  the  government  levying  the 
tax. 

4.  That,  in  the  assessment  and  collection  of  the  tax,  cer- 
tain guarantees  against  injustice  to  individuals,  especially 
by  way  of  notice  and  opportunity  for  a  hearing,'  shall  be 
provided. 

Taxation  must  be  for  a  public  purpose 

A  tax  being  in  the  eye  of  the  law  an  enforced  contribu- 

11  Davidson  v.  New  Orleans,  96  U.  S.  97;  24  L.  ed.  616. 


LAW  OF  THE  UNITED  STATES  215 

tion  from  persons  or  property  to  raise  money  for  a  public 
purpose,  it  follows  that  where  this  public  purpose  is  ab- 
sent, the  contribution  sought  to  be  enforced  cannot  be 
justified  as  a  tax  but  amounts  to  an  attempt  to  take  prop- 
erty without  due  process  of  law.  The  validity  of  this 
proposition  is  beyond  dispute,  but  judicial  records  furnish 
comparatively  few  instances  of  tax  levies  being  held  void 
for  this  reason.  This  is  due,  in  the  first  place,  to  the  fact 
that  not  often  do  the  laws  expressly  state  the  purpose  for 
which  the  tax  is  levied;  and,  in  the  second  place,  where 
this  purpose  is  stated,  the  courts  will,  in  deference  to  the 
legislative  judgment,  construe  the  purpose  to  be  a  public 
one  if  it  is  possible  to  do  so. 

A  leading  Federal  case  with  reference  to  this  subject 
is  that  of  Loan  Association  v.  Topeka.12 

Power  of  Congress  to  appropriate  money 

A  parity  of  reasoning  would  seem  to  provide  the  principle 
that  inasmuch  as  taxes  must  be  for  a  public  purpose,  an 
appropriation  of  the  proceeds  of  taxes  should  be  for  a 
public  purpose.  Furthermore,  it  would  seem  to  be  not 
unreasonable  to  argue  that  the  Federal  Government  being 
one  of  limited  enumerated  powers,  Congress  has  not  the 
authority  to  appropriate  money  except  for  the  perform- 
ance of  the  duties  thus  constitutionally  laid  upon  it.  In 
fact,  however,  the  limitation  that  an  appropriation  should 
be  for  a  public  purpose  has  been  without  practical  effect, 
as  the  courts  have  in  no  case  attempted  to  hold  invalid 
an  appropriation  by  Congress  on  the  ground  that  it  has 
been  for  a  purpose  not  public  in  character;  and,  as  regards 
the  restriction  that  appropriations  shall  be  in  aid  of  en- 
terprises which  the  Federal  Government  is  empowered  to 
undertake,  the  doctrine  has  become  an  established  one 


12  20  Wall.  655;  22  L.  ed.  455. 


216  PRINCIPLES  OF  THE  CONSTITUTIONAL 

that  Congress  may  appropriate  money  in  aid  of  matters 
which  the  Federal  Government  is  not  constitutionally 
able  itself  to  administer  and  regulate.13 

The  extent  of  the  appropriating  power  of  Congress  is 
illustrated  in  the  case  of  United  States  v.  Realty  Co.,14 
in  which  was  upheld  the  power  of  Congress  to  appropriate 
money  for  the  payment  of  certain  claims  which  the  Fed- 
eral Government  was  not  legally  but  only  morally  obli- 
gated to  satisfy. 

Equality  in  taxation 

The  Fourteenth  Amendment  requires  upon  the  part 
of  the  States  that  they  shall  not  deny  to  any  persons  within 
their  several  jurisdictions  the  equal  protection  of  the  laws, 
and  this  obligation  is,  of  course,  operative  in  the  field  of 
taxation.  No  similarly  phrased  obligation  is  laid  upon 
the  Federal  Government,  but  the  provision  of  the  Fifth 
Amendment  forbidding  the  taking  of  property  without 
due  process  of  law  imposes  an  obligation  broad  enough  to 
cover  all  or  nearly  all  cases  of  unequal  protection  of  the 
laws.  And,  furthermore,  as  to  taxes  it  is  specifically  pro- 
vided that  they  shall  be  uniform  throughout  the  United 
States.15 

Whether  or  not  the  equal  protection  of  the  laws  is  in- 
cluded within  the  general  prohibition  against  the  taking 
of  life,  liberty  or  property  without  due  process  of  law,  the 
provision  for  equal  protection  does  certainly  mark  off  a 
specific  right  or  a  group  of  rights  within  the  general  field 


13  See  the  paper  by  President  Monroe,  "Views  of  the  President  of 
the  United  States  on  the  Subject  of  Internal  Improvements"  sub- 
mitted in  1822  in  connection  with  his  veto  of  the  Cumberland  Road 
Bill. 

14 163  U.  S.  427;  16  Sup.  Ct.  Rep.  1120;  41  L.  ed.  215. 

15  The  Insular  Cases  held  that  this  clause  has  no  application  to 
unincorporated  territories. 


LAW  OF  THE  UNITED  STATES  217 

of  rights  against  the  violation  of  which  by  the  State  he  is 
guaranteed  by  the  Constitution.  That  this  protection  ap- 
plies within  the  field  of  taxation  is  well  established.16 

As  has  been  already  noted,  the  determination  as  to  when 
a  tax  shall  be  levied  and  upon  what  persons  and  property, 
and  by  what  rule  it  is  to  be  assessed  and  by  what  means 
collected  is  a  legislative  function.  However,  in  levying  an 
ad  valorem  tax  the  legislature  may  not  determine  the  assess- 
ment value  of  particular  pieces  of  property.  So  also  it 
follows  that  while  the  legislature  may,  within  its  discretion, 
determine  freely  what  occupations,  or  classes  of  property 
or  persons  are  to  be  taxed,  it  may  not  select  out  from  the 
general  mass  of  property,  or  general  citizen  body,  particu- 
lar pieces  of  property  or  particular  individuals  to  bear  the 
burden  of  the  tax.  When,  therefore,  a  tax  is  laid  upon 
certain  classes  of  property  or  of  persons,  there  must  be 
some  reasonable  basis  for  the  classification  adopted.  By 
this  is  meant  that  there  must  be  some  substantial  reason 
why  the  units,  whether  of  property  or  of  individuals, 
should  be  treated  as  distinct  groups.17 

Uniformity  of  taxation 

Granting  the  right  of  the  legislature  to  classify  persons 
and  property  for  purposes  of  taxation,  the  requirements 
of  due  process  of  law  and  of  the  additional  provision  found 
in  the  Federal  Constitution  and  in  almost  all  if  not  in  all 
of  the  State  Constitutions  that  all  laws  shall  be  uniform, 
make  it  necessary  that  the  assessments  of  all  persons  and 
property  within  the  class  or  district  selected  for  taxation 
shall  be  according  to  a  uniform  rule.18 

16  Santa  Clara  v.  S.  Pacific  R.  R.  Co.,  18  Fed.  Rep.  385. 

17  See  especially  the  language  of  the  court  in  Bell's  Gap  R.  R.  Co. 
v.  Pennsylvania,  134  U.  S.  232;  10  Sup.  Ct.  Rep.  533;  33  L.  ed.  892. 
Also,  Am.  Sugar  Refining  Co.  v.  Louisiana,  179  U.  S.  89;  21  Sup.  Ct. 
Rep.  43;  45  L.  ed.  102. 

18  Cf.  Cooley,  Constitutional  Limitations,  7th  ed.,  711,  724. 


218  PRINCIPLES  OF  THE  CONSTITUTIONAL 

What  constitutes  uniformity  throughout  the  United  States? 

In  the  Head  Money  Cases,19  speaking  with  reference  to 
the  requirement  of  the  Federal  Constitution  that  all  duties, 
imposts  and  excises  shall  be  uniform  throughout  the  United 
States,  the  court  say:  "The  tax  is  uniform  when  it  operates 
with  the  same  force  and  effect  in  every  place  where  the 
subject  is  to  be  found." 

The  principles  of  uniformity  and  of  reasonable  classifi- 
cation for  purposes  of  taxation  may  be  illustrated  by  cases 
passing  upon  the  constitutionality  of  inheritance  taxes. 
These  taxes,  collected  from  persons  receiving  property 
by  inheritance,  are  levied  in  many  of  the  civilized  States 
of  the  world.  In  the  United  States  they  have  several 
times  been  imposed  by  Federal  law,  and  at  present  (1910) 
they  are  to  be  found  in  about  thirty-five  States.  In  many 
cases  these  taxes  have  been  progressive,  the  rate  being 
higher  for  larger  than  for  smaller  bequests,  and  collateral 
heirs  often  taxed  more  heavily  than  direct  descendants. 
In  most  cases  small  inheritances  have  been  wholly  ex- 
empted from  the  operation  of  the  tax,  as  have  been  also 
bequests  and  inheritances  of  real  estate.  In  some  cases 
State  inheritance  tax  laws  have  been  questioned  because 
containing  some  special  obnoxious  provisions,  but  the 
ground  upon  which  they  have  usually  been  attacked 
has  been  that  they  have  violated  the  requirements  of 
equality  and  uniformity,  because  of  their  progressive  fea- 
tures and  because  of  the  exemptions  referred  to  above.  In 
general,  however,  the  laws  have  been  upheld. 

In  many  cases  the  classifications  in  the  State  laws  have 
been  upheld  as  reasonable  in  themselves,  but  fundamen- 
tally the  principle  upon  which  the  validity  of  the  laws  has 
been  sustained  is  that  an  inheritance  tax  is  not  a  tax  upon 
the  property  inherited  but  upon  the  right  to  inherit;  and 


19 112  U.  S.  580;  5  Sup.  Ct.  Rep.  247;  28  L.  ed.  798. 


LAW  OF  THE  UNITED  STATES  219 

that,  inasmuch  as  this  is  a  right  which  exists  only  by 
statute,  it  is  one  that  may  be  regulated  at  the  will  of  the 
legislature  that  creates  it. 

A  leading  case  in  the  Federal  courts  as  to  the  constitu- 
tionality of  a  State  inheritance  tax  law  as  tested  by  the 
requirements  of  the  Fourteenth  Amendment,  is  that  of 
Magoun  v.  Illinois  Trust  &  Savings  Bank.20 

In  this  case  the  doctrine  was  reaffirmed  that  an  inher- 
itance tax  is  not  one  on  property  but  on  the  right  to  take 
property  by  devise  or  descent,  and  that  this  right,  being 
a  legislative  creation,  the  States  may  attach  conditions 
thereunto.  Hence,  it  was  held,  that  the  States  may,  in 
taxing  this  privilege,  discriminate  between  relatives  and 
between  relatives  and  strangers  without  violating  State 
constitutional  provisions  requiring  uniformity  and  equal- 
ity of  taxation,  or  the  provision  of  the  Fourteenth  Amend- 
ment prohibiting  the  denial  of  the  equal  protection  of  the 
laws.  The  provision  of  the  Fourteenth  Amendment,  the 
court  say,  does  not  require  "exact  equality  of  taxation. 
It  only  requires  that  the  law  imposing  it  shall  operate 
on  all  alike  under  the  same  circumstances." 

The  constitutionality  of  the  inheritance  tax  provisions 
of  the  Federal  law  of  1898  was  upheld  in  Knowlton  v. 
Moore.21 

Protective  tariffs 

The  constitutionality  of  a  protective  tariff,  that  is,  a 
system  of  customs  duties  levied  on  foreign  imports  so  ar- 


20 170  U.  S.  283;  18  Sup.  Ct.  Rep.  594;  42  L.  ed.  1037.  See,  also, 
Billings  v.  Illinois,  188  U.  S.  97;  23  Sup.  Ct.  Rep.  272;  47  L.  ed.  400, 
and  Campbell  v.  California,  200  U.  S.  87;  26  Sup.  Ct.  Rep.  182;  50 
L.  ed.  382.  Cf.  Judson,  On  Taxation,  §§  454,  455. 

21  178  U.  S.  41;  20  Sup.  Ct.  Rep.  747;  44  L.  ed.  969.  See,  also, 
Snyder  v.  Bettman,  190  U.  S.  249;  23  Sup.  Ct.  Rep.  803;  47  L.  ed. 
1035. 


220  PRINCIPLES  OF  THE  CONSTITUTIONAL 

ranged  as  to  furnish  incidental  protection  to  home  in- 
dustries, though  questioned  in  earlier  years,  has  now  passed 
beyond  the  range  of  controversy.  Such  laws  being  on 
their  faces  revenue  measures,  they  may  not  be  questioned 
because  their  effect  is  primarily  to  supply  protection  rather 
than  revenue  and  because  this  was  the  intent  of  the  enact- 
ing legislature.  The  doctrine  of  the  court  in  McCray  v. 
United  States  22  is  conclusive  as  to  this.  But  even  if  this 
were  not  so,  a  tariff  avowedly  levied  primarily  and  solely 
for  protection  is  constitutionally  justified  under  the  grant 
of  authority  to  Congress  "to  regulate  commerce  with  for- 
eign nations." 

Bounties 

The  constitutionality  of  bounties  has  never  been  squarely 
passed  upon  by  the  Supreme  Court.  Their  validity  was 
questioned  in  Field  v.  Clark  23  and  United  States  v.  Realty 
Co.,24  but  in  neither  case  did  the  court  find  itself  obliged 
to  decide  the  point.  The  ground  upon  which  the  consti- 
tutionality of  bounties  has  been  contested  has  been  that 
their  payment  amounts  to  an  appropriation  of  public 
moneys  primarily  for  a  private  purpose.  The'courts  have 
often  held  that  an  expenditure  in  the  public  interest  is  not 
invalidated  by  the  fact  that  incidentally  private  interests 
are  advanced  thereby;  but  in  general  they  have  held  that 
an  appropriation  primarily  and  directly  for  the  further- 
ance of  private  interests  is  not  validated  by  the  fact  that 
incidentally  public  interests  are  in  a  measure  promoted.25 


22  195  U.  S.  27;  24  Sup.  Ct.  Rep.  769;  49  L.  ed.  78.  For  a  sum- 
mary of  arguments  pro  and  contra  as  to  the  constitutionality  of 
protective  tariffs,  see  Stanwood,  Tariff  Controversies  in  the  United 
States. 

23 143  U.  S.  649;  12  Sup.  Ct.  Rep.  495;  36  L.  ed.  294. 

24 163  U.  S.  427;  16  Sup.  Ct.  Rep.  1120;  41  L.  ed.  215. 

26  For  a  definition  of  bounties  see  Downs  v.  United  States,  187 


LAW  OF  THE  UNITED  STATES  221 

Export  duties 

Among  the  express  limitations  upon  the  powers  of  Con- 
gress, enumerated  by  the  Constitution,  is  that  which  pro- 
vides that  "no  tax  or  duty  shall  be  laid  on  articles  exported 
from  any  State."  26  In  another  clause  substantially  the 
same  prohibition  is  laid  upon  the  States,  it  being  declared 
that  "no  State  shall,  without  the  consent  of  Congress,  lay 
any  imposts  or  duties  on  imports  or  exports."  27 

The  term  "  exports  "  has  been  judicially  limited  to  goods 
exported  to  foreign  countries.  In  the  earlier  cases  of 
Brown  v.  Maryland28  and  Almy  v.  California29  it  was  taken 
for  granted  by  the  courts  that  the  term  applied  also  to 
goods  carried  from  one  State  to  another  State  of  the  Union, 
but  in  Woodruff  v.  Parham  30  these  dicta  were  overruled 
and  the  position  taken  which  has  not  since  been  disturbed, 
that  the  prohibition  has  reference  only  to  exportations 
to  countries  foreign  to  the  United  States.31 

To  come  within  the  definition  of  an  export  tax,  it  has 
been  held  that  the  tax  must  be  one  levied  upon  the  right 
to  export,  or  upon  goods  because  of  the  fact  that  they  are 
being  exported  or  are  intended  to  be  exported.  The  "fact 
that  certain  goods  are  intended  for  export  does  not,  how- 
ever, exempt  them  from  an  ordinary  property  tax,  for,  as 
said,  the  tax  is  one  on  exports  only  when  its  incidence  or 
amount  is  determined  by  the  fact  that  the  goods  are  in- 
tended for  export.  This  is  the  doctrine  laid  down  in 

U.  S.  496;  23  Sup.  Ct.  Rep.  222;  47  L.  ed.  275.    See  also  article, 
"The  Sugar  Bounties"  in  Harvard  Law  Review,  V,  320. 

26  Art.  I,  §  9,  cl.  5. 

27  Art.  I,  §  10,  cl.  2. 

28 12  Wh.  419;  6  L.  ed.  678. 

29  24  How.  169;  16  L.  ed.  644. 

30  8  Wall.  123,  19  L.  ed.  382. 

31  See,  also,  Dooley  v.  United  States,  183  U.  S.  151;  22  Sup.  Ct. 
Rep.  62;  43  L.  ed.  128,  for  a  discussion  as  to  what  constitutes  an 
export  tax. 


222  PRINCIPLES  OF  THE  CONSTITUTIONAL 

Coe  v.  Errol 32  with  reference  to  taxation  by  the  States  and 
in  Turpin  v.  Burgess 33  with  reference  to  Federal  taxation.34 

Direct  taxes 

The  Constitution  provides  that  capitation  and  other 
direct  taxes  levied  by  Congress  shall  be  apportioned  among 
the  States  in  proportion  to  their  respective  populations. 
In  a  number  of  instances  the  constitutionality  of  Federal 
taxes  not  thus  apportioned  has  been  questioned  upon  the 
ground  that  they  were,  within  the  constitutional  meaning 
of  the  word,  direct  taxes.  The  decision  of  the  Supreme 
Court  in  each  of  these  cases  in  which  this  point  has  been 
raised  has  supplied  an  authoritative  determination  only 
as  to  the  direct  or  indirect  character  of  the  particular 
taxes  in  question. 

In  1798  in  Hylton  v.  United  States  35  it  was  held  that  a 
tax  on  carriages  was  not  a  direct  tax. 

In  Pacific  Insurance  Co.  v.  Soule  36  a  tax  on  receipts  of 
insurance  companies  was  held  to  be  not  a  direct  tax,  the 
dicta  in  Hylton  v.  United  States  being  relied  upon  as 
authority. 

In  Veazie  Bank  v.  Fenno  37  a  tax  on  the  circulating  notes 
of  State  banks  was  held  to  be  an  indirect  tax. 


32 116  U.  S.  517;  6  Sup.  Ct.  Rep.  475;  29  L.  ed.  715. 
33 117  U.  S.  504;  6  Sup.  Ct.  Rep.  835;  29  L.  ed.  988. 

34  In  Pace  v.  Burgess,  92  U.  S.  372;  23  L.  ed.  657,  it  was  held  that 
the  Federal  requirement  that  stamps  be  affixed  to  packages  of  man- 
ufactured tobacco  intended  for  exportation  was  a  measure  for  the 
prevention  of  fraud,  and  not  an  export  tax.    In  Fairbanks  v.  United 
States,  181  U.  S.  283;  21  Sup.  Ct.  Rep.  648;  45  L.  ed.  862,  it  was 
held  that  a  stamp  tax  on  foreign  bills  of  lading,  imposed  by  the  act 
of  1898  was,  in  effect,  a  tax  on  the  articles  exported  and,  as  such,  an 
export  tax  and  void.    Cf.  Cornell  v.  Coyne,  192  U.  S.  418;  24  Sup. 
Ct.  Rep.  383;  48  L.  ed.  504. 

35  3  Ball.  171,  1  L.  ed.  556. 

36  7  Wall.  433;  19  L.  ed.  95. 

37  8  Wall.  533;  19  L.  ed.  482. 


LAW  OF  THE  UNITED  STATES  223 

In  Scholey  v.  Rew 38  a  tax  on  succession  to  real  estate 
was  held  indirect,  the  tax  being  declared  to  be  one  not 
upon  the  land,  but  upon  the  right  of  succession. 

In  Springer  v.  United  States  39  the  income  taxes  provided 
for  by  the  law  of  1862  were  held  not  to  be  direct  taxes. 
After  reviewing  earlier  cases  and  citing  the  opinions  of 
leading  commentators,  the  court  conclude:  "Our  conclu- 
sions are,  that  direct  taxes,  within  the  meaning  of  the 
Constitution,  are  only  capitation  taxes,  as  expressed  in 
that  instrument,  and  taxes  on  real  estate." 

Income  Tax  case  —Pollock  v.  Farmers'  L.  &  T.  Co. 

The  foregoing  line  of  cases,  concluding  with  the  emphatic 
assertion  of  a  unanimous  court  in  Springer  v.  United  States, 
justly  gave  rise  to  the  general  opinion  that  the  only  taxes 
to  be  deemed  direct  taxes  within  the  constitutional  mean- 
ing of  the  term  were  capitation  taxes  and  taxes  on  real 
estate.  However,  in  the  so-called  Income  Tax  Case- 
Pollock  v.  Farmers'  Loan  &  Trust  Co.40— decided  in  1895, 
this  doctrine  was  overthrown,  the  court,  upon  the  first 
hearing  holding  that  taxes  on  the  rents  or  income  of  real 
estate  are  direct  taxes;  and,  upon  a  rehearing,  holding  that 
taxes  on  personal  property  or  on  the  income  derived  from 
personal  property  are  also  direct. 

Upon  the  first  hearing  the  crucial  point  was,  of  course, 
whether  a  tax  upon  the  income  derived  from  real  estate  was 
distinguishable  from  a  tax  on  the  real  estate  itself.  This 
being  decided  in  the  negative,  it  necessarily  followed  that, 
inasmuch  as  a  tax  on  the  real  estate  is  admittedly  a  direct 
tax,  a  tax  on  the  income  derived  therefrom  would  be 
direct. 


8«23  Wall.  331;  23  L.  ed.  99. 
39 102  IT.  S.  586;  26  L.  ed.  253. 

40 157  U.  S.  429;  15  Sup.  Ct,  Rep.  673;  39  L.  ed.  759,  and  158  U. 
S.  601;  15  Sup.  Ct.  Rep.  912;  39  L.  ed.  1108. 


224  PRINCIPLES  OF  THE  CONSTITUTIONAL 

A  rehearing  of  the  case  having  been  allowed  the  court 
broadened  still  further  the  scope  of  the  term  "direct  taxes/' 
making  it  include  taxes  on  personal  property  and  upon  the 
income  therefrom.  From  this  doctrine  four  justices  dis- 
sented. 

In  Nicol  v.  Ames  41  the  scope  of  the  doctrine  laid  down 
in  the  Income  Tax  Case  was  clearly  stated.  In  this  case 
it  was  argued  that  a  duty  levied  by  the  War  Revenue  Act 
of  1898  upon  sales  or  agreements  of  sale  of  products  or 
merchandise  at  exchanges  or  boards  of  trade  was  a  direct 
tax  and  as  such  unconstitutional  because  not  properly 
apportioned.  The  court,  however,  held  that  the  tax  was 
in  the  nature  of  a  duty  or  excise  tax  for  the  privilege  of 
doing  business  at  such  places  and  not  a  tax  on  the  products 
or  merchandise  sold,  and,  therefore,  not  a  direct  tax. 

In  Patton  v.  Brady  42  a  tax  upon  tobacco,  however  pre- 
pared, manufactured  and  sold,  for  consumption  or  sale, 
was  held  not  a  direct  tax  but  an  excise  tax, — "  not  a  tax 
upon  property  as  such,  but  upon  certain  kinds  of  property, 
having  reference  to  their  origin  and  intended  use." 

In  Spreckles  Sugar  Refining  Co.  v.  McClain  43  the  special 
excise  tax  imposed  on  sugar  refining  by  the  act  of  1898, 
and  measured  by  the  gross  annual  receipts  in  excess  of  a 
named  sum,  was  held  to  be  not  a  direct  tax.  "Clearly," 
the  court  say,  "  the  tax  is  not  imposed  upon  gross  annual 
receipts  as  property,  but  only  in  respect  of  the  carrying 
on  or  doing  the  business  of  refining  sugar.  It  cannot  be 
otherwise  regarded  because  of  the  fact  that  the  amount 
of  the  tax  is  measured  by  the  amount  of  the  gross  annual 
receipts." 

The  constitutional  definition  of  a  direct  tax  was  again 


41 173  U.  S.  509;  19  Sup.  Ct.  Rep.  522;  43  L.  ed.  786. 
42 184  U.  S.  608;  22  Sup.  Ct.  Rep.  493;  46  L.  ed.  713. 
43 192  U.  S.  397;  24  Sup.  Ct.  Rep.  376;  48  L.  ed.  496. 


LAW  OF  THE  UNITED  STATES  225 

raised  in  Knowlton  v.  Moore  44  with  reference  to  the  con- 
stitutionality of  the  inheritance  taxes  levied  by  the  War 
Revenue  Act  of  1898.  The  court  applied  the  well  estab- 
lished doctrine  that  the  taxes  in  question  were  not  upon 
the  property  inherited  but  upon  the  right  to  inherit,  and, 
therefore,  not  being  taxes  upon  property  but  upon  a  right, 
were  in  the  nature  of  an  excise  tax,  and  as  such  indirect. 

The  Federal  Corporation  Tax  of  1909 

By  §  38  of  the  Tariff  Law  of  1909  provision  is  made 
"that  every  corporation,  joint-stock  company,  or  associa- 
tion organized  for  profit  and  having  a  capital  stock  repre- 
sented by  shares,  and  every  insurance  company  now  or 
hereafter  organized  under  the  laws  of  the  United  States 
or  of  any  State  or  Territory  of  the  United  States,  or  under 
the  acts  of  Congress  applicable  to  Alaska  or  the  District 
of  Columbia,  or  now  or  hereafter  organized  under  the  laws 
of  any  foreign  country,  and  engaged  in  business  in  any 
State  or  Territory  of  the  United  States  or  in  Alaska  or 
in  the  District  of  Columbia,  shall  be  subject  to  pay  an- 
nually a  special  excise  tax  with  respect  to  the  carrying  on 
or  doing  business  by  such  corporation,  joint-stock  com- 
pany or  association,  or  insurance  company  equivalent  to 
one  per  centum  upon  the  entire  net  income  over  and  above 
five  thousand  dollars,  received  by  it  from  all  sources  dur- 
ing such  year,  exclusive  of  amounts  received  by  it  as  divi- 
dends upon  stock  of  other  corporations,  joint-stock  com- 
panies or  associations,  or  insurance  companies  subject  to 
the  tax  hereby  imposed,  or  if  organized  under  the  laws  of 
any  foreign  country,  upon  the  amount  of  net  income  over 
and  above  five  thousand  dollars  received  by  it  from  busi- 
ness transacted  and  capital  invested  within  the  United 
States  and  its  Territories,  Alaska  and  the  District  of 


44 178  IT.  S.  41;  20  Sup.  Ct.  Rep.  747;  44  L.  ed.  969. 
15 


226  PRINCIPLES  OF  THE  CONSTITUTIONAL 

Columbia,  during  such  year,  exclusive  of  amounts  so  re- 
ceived by  it  as  dividends  upon  stock  of  other  corporations, 
joint-stock  companies  or  associations,  or  insurance  com- 
panies subject  to  the  tax  hereby  imposed."  In  Flint  v. 
Stone  Tracy  Co.,45  the  court  unanimously  held  this  tax  to 
be  an  excise  levied  "  upon  the  doing  of  business,  with  the 
advantages  which  inhere  in  the  peculiarities  of  corporate 
or  joint-stock  organizations  of  the  character  described." 
As  such  it  was  held  to  be  an  indirect  tax  which  did  not 
need  to  be  apportioned  among  the  States  according  to 
their  respective  populations.  The  income  of  the  concerns 
taxed  was  declared  to  be  but  the  measure  of  the  tax  and 
not  the  subject-matter  itself  of  the  tax. 

Due  process  of  law  and  taxation 

Due  process  of  law  requires  that  in  the  case  of  an  ad 
valorem  tax  an  opportunity  shall  be  given  the  taxpayer 
to  appear  and  give  evidence  as  to  the  proper  valuation 
of  the  property  which  is  assessed.46  In  other  cases,  how- 
ever, no  notice  or  opportunity  for  hearing  need  be  given 
the  taxpayer.47 

It  is  not  necessary  that  the  hearing  thus  required  in  the 
case  of  ad  valorem  taxes  should  be  before  a  court  of  justice. 
The  hearing  may  be  had  and,  in  fact,  is  usually  had,  before 
an  administrative  board  whose  action  in  this  respect  is 
judicial  in  character  and  whose  determinations  may  be 
final  and  conclusive  in  the  matter.  Thus,  for  example,  in 
§  2930  of  the  Revised  Statutes,  it  is  provided  that  in  the 
matter  of  appraisement  of  imports  an  appeal  shall  be  al- 
lowed the  importer  from  the  collector  of  customs  to  "one 

45  220  U.  S.  107;  31  Sup.  Ct.  Rep.  342. 

46  Or,  if  it  be  a  special  assessment  for  the  purpose  of  some  public 
improvement,  as  to  whether  the  property  in  question  is  properly 
included  within  the  assessment. 

47Hagar  v.  Reclamation  District,  111  U.  S.  701;  4  Sup.  Ct.  Rep. 
663;  28  L.  ed.  569. 


LAW  OF  THE  UNITED  STATES  227 

discreet  and  experienced  merchant  to  be  associated  with 
one  of  the  general  appraisers  wherever  practicable,  or  two 
discreet  and  experienced  merchants,"  but  that  "  if  they 
shall  disagree,  the  collector  shall  decide  between  them; 
and  the  appraisement  thus  determined  shall  be  final  and 
be  deemed  to  be  true  value,  and  the  duties  shall  be  levied 
thereon  accordingly."  Provision  is,  however,  made  for 
relief  in  cases  where  the  collectors  have  acted  fraudulently 
or  upon  a  principle  not  sanctioned  by  law,  or  where  they 
have  in  any  way  transcended  the  powers  given  them  by 
Congress. 

In  Hilton  v.  Merritt 48  the  constitutionality  of  these 
provisions  was  upheld.  In  Auffmordt  v.  Hedden  49  it  was 
held  that  it  was  not  necessary,  and  that  it  had  not  been 
the  intention  of  Congress  that  the  hearing  before  the  ap- 
praisers or  collector  should  be  characterized  by  all  the 
formalities  of  a  court  of  law,  but  that  the  proceedings 
might,  and  from  necessity  would  generally  have  to,  be  of  a 
summary  character.  The  court  thus  held  that  due  proc- 
ess of  law  had  not  been  denied  because  the  importer  or 
his  agent  had  been  practically  excluded  from  the  hearing 
upon  the  reappraisement,  that  he  had  not  been  permitted 
to  confront  the  opposing  witnesses  by  testimony  on  his 
own  behalf  or  been  allowed  the  aid  of  counsel.  "No 
government,"  said  the  court,  "  could  collect  the  revenues, 
or  perform  its  necessary  functions,  if  the  system  contended 
for  by  the  plaintiffs  were  to  prevail." 

For  the  collection  of  taxes,  as  well  as  for  the  appraise- 
ment for  taxation,  summary  modes  of  procedure  may  be 
had,  the  justification  being  that  without  such  means  no 
government  can  maintain  itself.50 

48 110  U.  S.  97;  3  Sup.  Ct.  Rep.  548;  28  L.  ed.  83. 
49 137  U.  S.  310;  11  Sup.  Ct.  Rep.  103;  34  L.  ed.  674. 
50  See  especially  Murray's  Lessee  v.  Hoboken  Land  and  Improve- 
ment Co.,  18  How.  272;  15  L.  ed.  372. 


228  PRINCIPLES  OF  THE  CONSTITUTIONAL 

Due  process  of  law  in  matters  of  taxation  does  not  re- 
quire the  same  kind  of  notice  that  is  required  in  a  suit  at 
law,  or  in  proceedings  for  taking  private  property  under 
the  power  of  eminent  domain.  No  violation  of  due  proc- 
ess of  law  is  committed  when  a  tax  is  collected  according 
to  customary  forms  and  established  .usages,  or  in  subordi- 
nation to  the  principles  which  underlie  them.  "This  must 
be  so,"  the  court  say  in  King  v.  Mullins,51  "else  the  ex- 
istence of  government  might  be  put  in  peril  by  the  delays 
attendant  upon  formal  judicial  proceedings  for  the  col- 
lection of  taxes." 

In  most  of  the  States  it  is  provided  by  statute  that  the 
assessment  and  collection  of  taxes  shall  not  be  restrained 
by  a  judicial  writ;  and,  since  1867,  by  act  of  Congress,  it 
has  been  provided  that  "  no  suit  for  the  purpose  of  re- 
straining the  assessment  or  collection  of  taxes  shall  be 
maintained  in  any  court."  52 

The  constitutionality  of  this  provision  has  been  sustained 
whenever  questioned,  administrative  necessity  furnishing 
the  justification.53 

Borrowing  power  of  the  United  States:  legal  tender 

The  Federal  Government  is  given  power  "to  borrow 
money  on  the  credit  of  the  United  States."  54  \ 

The  power  thus  given  is  free  from  limitations.  In  the 
draft  of  the  Constitution  reported  by  the  Committee  on 
Detail  to  the  Constitutional  Convention,  the  draft  read, 
"  To  borrow  money  and  emit  bills  on  the  credit  of  the 
United  States."  The  express  authorization  to  emit  bills 
of  credit  was  stricken  out  by  the  Convention,  but,  ap- 


61 171  U.  S.  404;  18  Sup.  Ct.  Rep.  925;  43  L.  ed.  214. 
62  Rev.  Stat.,  §3224. 

53  Cheatham  v.  United  States,  92  U.  S.  85;  23  L.  ed.  561;  Railroad 
Tax  Cases,  92  U.  S.  575:  23  L.  ed.  663. 

54  Art.  I,  §  8,  cl.  2. 


LAW  OF  THE  UNITED  STATES  229 

parently,  not  with  the  intention  of  thereby  depriving  the 
United  States  of  the  power,  but  upon  the  ground  that 
the  power  would  be  included  in  the  general  authority  to 
borrow  money.  That  this  is  so,  has  not  been  questioned 
by  the  courts.  There  has,  however,  been  serious  con- 
troversy as  to  the  power  of  the  United  States  to  give  a 
legal  tender  character  to  these  bills  when  issued. 

The  debates  in  the  Constitutional  Convention,  and  vari- 
ous provisions  of  the  Constitution,  would  seem  to  indicate 
an  intention  upon  the  part  of  the  framers  of  the  Constitu- 
tion that  a  legal  tender  character  might  be  given  by  Con- 
gress only  to  the  metallic  money  coined  by  the  United 
States,  and  the  Supreme  Court  in  Hepburn  v.  Griswold  55 
so  held  as  regards  the  payment  of  debts  between  private 
parties  created  before  the  enactment  of  the  law.  In  Knox 
v.  Lee,56  however,  four  justices  dissenting,  this  doctrine  was 
overthrown,  and  the  issuance  of  legal  tender  notes  author- 
ized as  a  legitimate  war  power.  And  finally,  in  the  Legal 
Tender  Cases,  Juillard  v.  Greenman,57  the  authority  in 
question  was  conceded  to  exist  as  implied  in  the  general 
power  to  borrow  money,  whether  in  times  of  war  or  peace. 

As  regards  the  contention  that  the  effect  of  applying 
the  legal  tender  law  to  prior  contracted  debts  is  to  deprive 
the  creditor  of  property  without  due  process  of  law,  in 
violation  of  the  Fifth  Amendment,  the  court  in  Knox  v. 
Lee  say:  "That  provision  has  always  been  understood  as 
referring  only  to  a  direct  appropriation,  and  not  to  con- 
sequential injuries  resulting  from  the  exercise  of  lawful 
power.  It  has  never  been  supposed  to  have  any  bearing 
upon  or  to  inhibit  laws  that  directly  work  harm  and  loss 
to  individuals.  A  new  tariff,  an  embargo,  a  draft,  or  a 
war,  may  inevitably  bring  upon  individuals  great  losses, 

55  8  Wall.  603;  19  L.  ed.  513. 

56 12  Wall.  457;  20  L.  ed.  287. 

57  110  U.  S.  421;  4  Sup.  Ct.  Rep.  122,  28  L.  ed.  204. 


230  PRINCIPLES  OF  CONSTITUTIONAL  LAW 

may,  indeed,  render  valuable  property  almost  valueless. 
They  may  destroy  the  worth  of  contracts.  But  whoever 
supposed  that  because  of  this  a  tariff  could  not  be  changed, 
or  a  non-intercourse  act,  or  an  embargo  be  enacted,  or  a 
war  declared." 


CHAPTER  XXXII 

INTERSTATE   AND    FOREIGN    COMMERCE 

The  commerce  clause:  its  importance 

In  this  chapter  will  be  considered  the  respective  powers 
of  the  Federal  Government  and  of  the  States  with  reference 
to  interstate  commerce.  The  constitutional  law  govern- 
ing this  subject  is  very  similar  to,  and  its  exposition  will 
serve  in  a  very  large  measure  to  explain,  the  law  governing 
commerce  with  foreign  nations,  with  the  Indian  Tribes, 
with  or  between  the  Territories,  and  with  the  District  of 
Columbia.  In  so  far  as  there  are  differences  these  will  be 
stated  in  the  special  paragraphs  devoted  to  these  classes 
of  commerce. 

By  Clause  3  of  §  8  of  Article  I  of  the  Constitution,  known 
as  the  Commerce  Clause,  Congress  is  given  power  to 
"regulate  commerce  with  foreign  nations  and  among  the 
several  States,  and  with  the  Indian  Tribes." 

The  full  importance  of  the  grant  of  authority  contained 
in  this  clause  did  not  appear  for  many  years  after  the 
adoption  of  the  Constitution.  Not  until  1824  by  the  de- 
cision of  the  Supreme  Court  in  Gibbons  v.  Ogden1  was  a 
clear  indication  given  of  the  extent  of  the  power  granted, 
and  not  until  the  Constitution  was  nearly  a  hundred  years 
old  did  Congress  begin  the  exercise  of  the  authority  granted 
it  to  regulate,  affirmatively,  commerce  between  the  States. 

Commerce  defined:  transportation  essential 
Commerce  has  frequently  been  defined  by  the  courts  as 

'9  Wh.  1;6L.  ed.  23. 

231 


232  PRINCIPLES  OF  THE  CONSTITUTIONAL 

intercourse.  But  not  all  intercourse  is  commerce.  To 
render  intercourse  commerce  there  must  be  present  the 
element  of  transportation,  whether  of  persons  or  things. 
"  Transportation  is  essential  to  commerce,  or  rather  is 
commerce  itself."2 

The  commodities  transported  may  be  tangible  and  pon- 
derable, or  intangible  and  imponderable,  as,  for  example, 
telegraphic  or  telephonic  messages.3 

The  instrumentalities  of  commerce 

"The  powers  .  .  .  granted  by  [the  commerce  clause] 
are  not  confined  to  the  instrumentalities  of  commerce, 
or  the  postal  service  known  or  in  use  when  the  Constitu- 
tion was  adopted,  but  they  keep  pace  with  the  progress 
of  the  country,  and  adapt  themselves  to  the  new  develop- 
ments of  time  and  circumstances.  They  extend  from  the 
horse  with  its  rider  to  the  stage-coach,  from  the  sailing 
vessel  to  the  steamboat,  from  the  coach  and  the  steam- 
boat to  the  railroad,  and  from  the  railroad  to  the  tele- 
graph, as  the  new  agencies  are  successively  brought  into 
use  to  meet  the  demands  of  increasing  population  and 
wealth."4 

The  doctrine  thus  laid  down  in  the  Pensacola  Case 
has  never  been  questioned.  Telephonic  messages  are,  of 
course,  covered  by  it.  No  case  involving  the  transmission 
of  wireless  messages  has  arisen,  but  without  doubt  they 

2  Railway  Co.  v.  Husen,  95  U.  S.  465;  24  L.  ed.  527.    Whether  or 
not  the  going  of  persons  across  State  lines,  whether  on  foot  or  in 
vehicle,  is  commerce,  no  element  of  trade  or  barter  being  involved, 
can  be  said  to  be  interstate  commerce  is  doubtful.    This  undoubtedly 
would  be  intercourse,  the  freedom  of  which  might  not  be  restrained 
by  the  States,  but,  to  the  author  it  would  not  be  commerce.    But 
see  House  Rpt.  No.  2270,  parts  1  and  2,  61st  Cong.,  3d  Sess. 

3  Pensacola  Tel.  Co.  v.  W.  U.  Tel.  Co.,  96  U.  S.  1;  24  L.  ed.  708; 
Leloup  v.  Mobile,  127  U.  S.  640;  8  Sup.  Ct.  Rep.  1383;  32  L.  ed.  311. 

4  Pensacola  Tel.  Co.  v.  W.  U.  Tel.  Co.,  96  U.  S.  1;  24  L.  ed.  708. 


LAW  OF  THE  UNITED  STATES  233 

• 

would  be  treated  as  commerce,  and  the  same  would  be  true 
of  messages  and  persons  carried  by  balloons  and  other 
apparatus  for  the  navigation  of  the  air. 

Commerce  embraces  water  navigation 

Commerce  includes  navigation  of  the  water,  and  where 
this  navigation  is  for  the  transportation  of  persons  or 
goods  to  or  from  foreign  countries  or  among  the  States, 
it  is  brought  within  the  authority  given  to  the  Federal 
Government  by  the  commerce  clause.  This  was  estab- 
lished once  for  all  in  Gibbons  v.  Ogden.5 

Transportation  of  persons  is  commerce 

That  the  transportation  of  persons  is  commerce  was  at 
first  denied  by  Justice  Barbour  in  the  opinion  which  he 
rendered  in  New  York  v.  Miln,6  but  this  doctrine  was  at 
once  overruled  and  has  not  since  been  questioned. 

Bills  of  exchange  not  articles  of  commerce 

In  Nathan  v.  Louisiana7  the  court  laid  down  the  doctrine 
that  the  buying  and  selling  of  foreign  bills  of  exchange, 
while  an  aid  to,  and  an  incident  of,  commerce,  is  not  it- 
self commerce.  "The  individual/'  say  the  court,  "who 
uses  his  money  and  credit  in  buying  and  selling  bills  of 
exchange,  and  who  thereby  realizes  a  profit  ...  is  not 
engaged  in  commerce,  but  in  supplying  an  instrument  of 
commerce.  He  is  less  connected  with  it  than  the  ship 
builder,  without  whose  labor  foreign  commerce  could  not 
be  carried  on."  And  also:  "A  bill  of  exchange  is  neither 
an  export  nor  an  import.  It  is  not  transmitted  through 
the  ordinary  channels  of  commerce,  but  through  the  mail.'* 


59Wh.  1;6L.  ed.  23. 

6 11  Pet,  102;  9  L.  ed.  648. 

7  8  How.  73;  12  L.  ed.  992. 


234  PRINCIPLES  OF  THE  CONSTITUTIONAL 

Insurance  not  commerce 

The  writing,  selling  and  transmission  of  insurance  pol- 
icies has  been  held  not  to  be  commerce. 

That  the  business  of  fire  insurance  is  not  commerce  was 
decided  in  Paul  v.  Virginia.8 

That  the  business  of  marine  insurance  is  not  commerce 
was  held  in  Hooper  v.  California.9 

In  New  York  Life  Insurance  Co.  v.  Craven10  these  cases 
are  cited  with  approval  and  applied  to  life  insurance,  the 
court  saying:  "  We  repeat,  the  business  of  insurance  is  not 
commerce.  The  contract  of  insurance  is  not  an  instru- 
mentality of  commerce.  The  making  of  such  a  contract 
is  a  mere  incident  of  commercial  intercourse,  and  in  this 
respect  there  is  no  difference  whatever  between  insurance 
against  fire  and  insurance  against  the  perils  of  the  sea. 
And  we  add,  or  against  the  uncertainty  of  man's  mortal- 
ity." 

In  Hopper  v.  California  the  court  emphasize  the  dis- 
tinction between  interstate  commerce  or  an  instrumental- 
ity thereof,  and  the  mere  incidents,  of  which  insurance  is 
one,  which  may  attend  the  carrying  on  of  such  commerce. 
"This  distinction,"  the  court  declare,  "  has  always  been 
carefully  observed,  and  is  clearly  defined  by  the  authorities 
cited.  If  the  power  to  regulate  interstate  commerce  ap- 
plied to  all  the  incidents  to  which  said  commerce  might 
give  rise  and  to  all  contracts  which  might  be  made  in  the 
course  of  its  transaction,  that  power  would  embrace  the 
entire  sphere  of  mercantile  activity  in  any  way  connected 
with  the  trade  between  the  States;  and  would  exclude  State 
control  over  many  contracts  purely  domestic  in  their 
nature." 


s  8  Wall.  168;  19  L.  ed.  357. 

9 155  U.  S.  648;  15  Sup.  Ct.  Rep.  207;  39  L.  ed.  297. 

10 178  U.  S.  389;  20  Sup.  Ct.  Rep.  962;  44  L.  ed.  1116. 


LAW  OF  THE  UNITED  STATES  235 

Lotteries 

By  act  of  March  2,  1893,  entitled  "An  Act  for  the  sup- 
pression of  lottery  traffic  through  national  and  interstate 
commerce  and  the  postal  service,  subject  to  the  jurisdiction 
and  laws  of  the  United  States,"  the  carriage  of  lottery 
tickets  from  one  State  to  another,  whether  by  mail,  or  by 
freight  or  express  was  absolutely  prohibited.11 

After  having  been  three  times  argued  before  the  Su- 
preme Court  the  Lottery  Law  was  upheld  in  Champion 
v.  Ames,12  four  justices  dissenting. 

Bearing  of  the  lottery  decision  on  insurance 

The  holding  by  the  court  that  lottery  tickets  are  articles 
of  commerce  and  may  become  articles  of  interstate  com- 
merce, has  undoubtedly  increased  the  possibility  that, 
should  a  Federal  law  be  enacted  in  regulation  of  insur- 
ance companies  doing  business  in  more  than  one  State,  it 
will  be  sustained  by  the  Supreme  Court.  Certainly  there 
are  very  great  points  of  similarity  between  an  insurance 
policy  and  a  lottery  ticket.  Like  the  insurance  policy, 
the  lottery  ticket  is  a  promise  to  pay  upon  the  happening 
of  a  certain  contingency.  Lottery  tickets,  to  be  sure, 
freely  pass  from  hand  to  hand  by  sale  or  exchange,  but, 
though  not  so  readily,  insurance  policies  are  also  at  times 
sold  and  exchanged.  Furthermore,  should  the  consti- 
tutionality of  a  Federal  law  in  regulation  of  insurance  be 
involved,  it  would  receive  the  benefit  of  every  rational 
doubt. 

International  Text  Book  Co.  v.  Pigg 

The  definition  of  interstate  commerce  is  still  further 
widened  in  the  case  of  the  International  Text  Book  Co. 


11  28  Stat.  at  L.  963. 

12 188  U.  S.  321;  23  Sup.  Ct.  Rep.  321;  47  L.  ed.  492. 


236  PRINCIPLES  OF  THE  CONSTITUTIONAL 

v.  Pigg.13  In  that  case  it  was  held  that  the  carrying 
on  by  a  corporation  of  instruction  of  students  in  other 
States  by  correspondence,  the  solicitation  of  students  in 
other  States  by  local  agents,  and  the  collection  and  trans- 
mitting of  fees  to  the  home  office,  is  a  carrying  on  of  inter- 
state commerce. 

Commerce  does  not  include  the  production  of  the  commodi- 
ties transported 

In  a  series  of  most  important  decisions  it  has  been  held 
that  commerce  does  not  begin  until  the  goods  intended  for 
purchase,  sale  or  exchange  in  another  State  have  begun 
their  trip  thither.  That  is  to  say,  they  must  at  least  have 
been  placed  in  the  hands  of  the  agents  who  are  to  transport 
them.  The  mere  fact  that  goods  are  manufactured  to  be 
transported  and  sold  in  another  or  other  States,  or  that 
they  have  been  segregated  in  the  places  where  produced, 
for  that  purpose,  is  not  sufficient  to  make  them  articles 
of  interstate  commerce.  In  some  way  they  must  have 
advanced  some  distance  upon  their  way  outside  of  the 
State  of  production.  It  is  clear,  therefore,  that  the  whole 
process  of  manufacture  or  production  is  definitely  excluded 
from  the  operation  of  the  commerce  clause.  "  Commerce 
succeeds  to  manufacture,  and  is  not  a  part  of  it."14 

Intent  to  export  not  controlling 

The  fact  that  goods  are  manufactured  for  export  does 
not  render  their  manufacture  an  element  in  the  interstate 
or  foreign  commercial  transaction.  This  principle  is 
clearly  laid  down  in  Coe  v.  Errol.15  In  this  case  the  court 
held  that  certain  logs  cut  in  New  Hampshire  and  hauled 


13  217  U.  S.  91;  30  Sup.  Ct.  Rep.  431;  54  L.  ed.  678. 

14  United  States  v.  E.  C.  Knight  Co.,  150  U.  S.  1;  15  Sup.  Ct.  Rep. 
249;  39  L.  ed.  325. 

15 116  U.  S.  517;  6  Sup.  Ct,  Rep.  475;  29  L.  ed.  715. 


LAW  OF  THE  UNITED  STATES  237 

to  a  river  town  for  transportation  to  the  State  of  Maine 
but  not  yet  actually  started  upon  their  final  way  to  that 
State,  had  not  become  articles  of  interstate  commerce. 
The  court  say:  " There  must  be  a  point  of  time  when  they 
cease  to  be  governed  exclusively  by  the  domestic  law  and 
begin  to  be  governed  and  protected  by  the  national  law 
of  commercial  regulation,  and  that  moment  seems  to  us  to 
be  a  legitimate  one  for  this  purpose,  in  which  they  com- 
mence their  final  movement  from  the  State  of  their  origin, 
to  that  of  their  destination." 

Interstate  commerce  includes  the  sale  of  the  articles  im- 
ported 

It  has  been  seen  that  interstate  commerce  does  not  begin 
until,  by  some  definite  act,  the  goods  have  started  upon 
their  trip  outside  the  State  of  origin.  As  to  the  termina- 
tion of  interstate  transportation  it  has  been  established 
that  this  does  not  occur  until  the  goods  transported  have 
reached  their  destination,  been  delivered,  and,  either  sold 
or  taken  out  of  their  original  packages  in  which  shipped, 
and  thus  commingled  with  the  other  goods  of  the  State. 

The  right  to  import,  including  the  right  of  the  importer 
to  sell  the  goods  imported,  and  the  right  to  engage  in  inter- 
state and  foreign  commerce  being  a  Federal  right,  the 
States  have  no  more  constitutional  power  to  restrain  or 
regulate  the  sale  of  imported  commodities  by  the  importer 
than  they  have  to  prevent  or  regulate  their  being  brought 
within  the  State.16 

The  fact  that  the  right  to  engage  in  commerce  carries 
with  it  the  right  to  sell  the  goods  transported,  does  not, 
it  has  been  held,  exclude  the  right  of  the  State  to  tax  goods 

1(5  Brown  v.  Maryland,  12  Wh.  419;  6  L.  ed.  678;  Leisy  v.  Hardin, 
135  U.  S.  100;  10  Sup.  Ct,  Rep.  681 ;  34  L.  ed.  128.  As  to  the  inability 
of  a  State  to  prevent  commodities  from  being  taken  out  the  State  see 
West  v.  Kansas  Natural  Gas  Co.,  221  U.  S.  229;  31  Sup.  Ct.  Rep.  564; 
55  L.  ed.  716. 


238  PRINCIPLES  OF  THE  CONSTITUTIONAL 

brougjit  from  another  State  still  unsold,  and  still  in  their 
original  packages,  provided  such  goods  be  not  discrimi- 
nated against  because  of  their  having  been  brought  into 
the  State  from  another  State.  As  to  imports  from  foreign 
countries,  however,  the  rule  is  that  until  sale  in  the  original 
package,  or  until  the  breaking  of  the  package,  no  State 
1>ax  may  be  imposed.  This  prohibition  is,  however,  not 
drawn  from  the  commerce  clause  but  from  the  express 
provision  of  the  Constitution  that  "No  State  shall,  with- 
out the  consent  of  Congress,  lay  any  impost  or  duty  on 
imports  or  exports."17 

The  original  package  doctrine 

From  the  foregoing  sections  it  has  appeared  that  the 
State's  authority  over  articles  brought  in  from  the  other 
States  does  not  attach,  except  for  purposes  of  taxation, 
until  the  articles  so  brought  in  have  been  sold.  It  will 
also  have  appeared,  however,  from  the  quotations  which 
have  been  made,  that  this  rule  is  modified  by  the  doctrine 
that,  whether  sold  or  not,  the  articles  brought  in  lose  their 
interstate  commercial  character,  and  full  State  authority 
at  once  attaches,  as  soon  as  these  articles  have  in  any  way 
become  mixed  with  the  general  mass  of  property  of  the 
State  to  which  they  have  been  transported.  As  a  con- 
venient test  for  determining  when  this  commingling  takes 
place,  the  Supreme  Court  early  developed  the  so-called 
"Original  Package"  doctrine.  This  doctrine  is  that  so 
long  as  the  commodity  is  kept  in  the  unbroken  package 
in  which  it  was  delivered  to  the  carrier  for  transportation, 
no  commingling  with  the  State  goods  has  taken  place. 
At  times  this  has  been  stated  by  the  courts  and  by  com- 
mentators as  an  absolute  rule.  In  fact,  however,  the  doc- 
trine does  not  state  a  right  to  which  the  exporter  is  entitled, 


17  Art.  I,  §  10,  cl.  1. 


LAW  OF  THE  UNITED  STATES  239 

but  is  a  test  which  the  court  frequently  finds  convenient 
to  apply  for  determining  when  commingling  of  the  imports 
with  State  goods  has  taken  place,  but  which  in  other  cases 
may  be  held  inapplicable  because  of  the  character  of  the 
goods  transported.18 

Exclusiveness  of  Federal  control  over  interstate  commerce 
The  Federal  authority  over  interstate  commerce  is  not 
in  terms  made  exclusive,  and  the  courts  have  at  times 
varied  their  views  as  to  the  extent  to  which  an  exclusive- 
ness  is  to  be  deemed  implied.  From  the  beginning  the 
States  acted  upon  the  assumption  that  they  were  not  de- 
prived of  power  to  grant  to  persons  and  corporations  ex- 
clusive privileges  with  reference  to  the  carrying  on  upon 
land  of  commerce  between  themselves  and  other  States; 
and  this  practice  was  acquiesced  in  by  the  Federal  Govern- 
ment. As  to  the  carrying  on  of  interstate  commerce  by 
water,  however,  it  seems  to  ha've  been  more  generally 
held  that  the  Federal  jurisdiction  was  exclusive.  This, 
however,  was  not  judicially  determined  until  the  decision 
of  the  great  case  of  Gibbons  v.  Ogden.19 

Gibbons  v.  Ogden 

In  this  case  it  was  held  that  the  grant  by  the  State  of 
New  York  to  an  individual  of  an  exclusive  right  to  navigate 


18  The  doctrine  was  first  stated  in  Brown  v.  Maryland,  12  Wh. 
419;  6  L.  ed.  678,  and  reaffirmed  in  Leisy  v.  Hardin,  135  U.  S.  100; 
10  Sup.  Ct.  Rep.  681;  34  L.  ed.  128,  with  reference  to  the  importa- 
tion of  intoxicating  liquors;  and  in  Schollenberger  v.  Pennsylvania, 
171  U.  S.  1;  18  Sup.  Ct.  Rep.  757;  43  L.  ed.  49.    For  instances  in 
which  the  court  found  it  difficult  to  apply  the  doctrine  see  May  v. 
New  Orleans,  178  U.  S.  496;  20  Sup.  Ct.  Rep.  976;  44  L.  ed.  1165; 
Austin  v.  Tennessee,  179  U.  S.  343;  21  Sup.  Ct.  Rep.  132;  45  L.  ed. 
224;  Cook  v.  Marshall,  196  U.  S.  261;  25  Sup.  Ct.  Rep.  233;  49  L.  ed. 
471. 

19  9  Wh.  1;6L.  ed.  23. 


240  PRINCIPLES  OF  THE  CONSTITUTIONAL 

its  waters  with  steam  vessels  had  no  constitutional  validity 
in  so  far  as  interstate  or  foreign  commerce  was  affected. 
In  support  of  this  judgment,  Marshall,  in  his  opinion,  laid 
down  in  general  terms  the  doctrine  that  by  the  commerce 
clause,  the  Federal  Government  is  granted  an  exclusive 
control  of  commerce  between  the  States,  and  with  foreign 
countries,  and  that,  therefore,  it  is  beyond  the  constitu- 
tional power  of  the  States  to  grant,  or  to  withhold,  inter- 
state or  foreign  commercial  privileges. 

A  review  of  the  cases  which  followed  Gibbons  v.  Ogden 
will  show,  however,  that  the  doctrine  of  the  Supreme  Court 
as  to  the  exclusiveness  of  Federal  authority  over  commerce 
has  not  been  a  uniform  one.  Without  abandoning  the 
doctrine  that  the  States  are  constitutionally  disqualified 
from  directly  interfering  with  the  regulation  of  commerce, 
the  Supreme  Court  has  at  times  upheld  State  acts  which 
have  in  fact  amounted  to  substantial  interferences  with  in- 
terstate and  foreign  commerce.  And  indeed,  the  language 
of  the  court,  and  even  of  Marshall  himself,  in  certain  cases, 
has  implied  the  adoption  of  the  doctrine  that  the  constitu- 
tionality of  a  State  law  in  regulation  of,  or  interfering  with, 
the  freedom  of  interstate  and  foreign  commerce  is  to  be 
tested  rather  by  the  existence  of  a  conflicting  Federal 
statute,  than  by  the  exclusiveness  of  the  Federal  juris- 
diction.20 

In  Cooley  v.  Port  Wardens,21  decided  in  1851,  the  Su- 
preme Court,  three  justices  dissenting,  accepted  the  princi- 
ple that  had  been  suggested  by  Webster  and  approved  by 
Justice  Woodbury,  and  upheld  a  pilotage  law  of  Pennsyl- 
vania on  the  ground  that,  though  it  was  a  regulation  of 


20  See  Brown  v.  Maryland,  12  Wh.  419;  6  L.  ed.  678;  Wilson  v. 
Blackbird  Creek  Co.,  2  Pet.  245;  7  L.  ed.  412;  New  York  v.  Miln, 
11  Pet.  102,  9  L.  ed.  648;  License  Cases,  5  How.  504;  12  L.  ed.  256; 
Passenger  Cases,  7  How.  283,  12  L.  ed.  702. 

21 12  How.  299;  13  L.  ed.  996. 


LAW  or  THE  UNITED  STATES  241 

commerce,  it  was  with  reference  to  a  matter  properly 
lending  itself  to  local  State  control,  and  one  for  the  regu- 
lation of  which  Congress  had  not  legislated.  Justice 
Curtis,  delivering  the  opinion  of  the  court,  said:  "When 
the  nature  of  a  power  like  this  [the  commerce  power]  is 
spoken  of,  when  it  is  said  that  the  nature  of  the  power  re- 
quires that  it  should  be  exercised  exclusively  by  Congress, 
it  must  be  intended  to  refer  to  the  subjects  of  that  power, 
and  to  say  that  they  are  of  such  a  nature  as  to  require  ex- 
clusive legislation  by  Congress." 

The  doctrine  of  Cooley  v.  Port  Wardens  is,  at  the  present 
time,  the  accepted  doctrine  of  the  Supreme  Court.  In 
Bowman  v.  R.  R.  Co.22  the  doctrine  is  declared  to  be  firmly 
established. 

The  rule  thus  stated  as  to  the  distinction  between  sub- 
jects requiring  general  and  those  necessitating,  or.  at  least 
rendering  highly  desirable,  local  regulation,  is  a  simple 
and  rational  one.  It  is,  however,  one,  which  in  application 
has  not  infrequently  given  rise  to  considerable  difficulty, 
there  being  no  definite  criteria  for  distinguishing  between 
these  two  classes  of  subjects.  This  has  made  it  necessary 
that  each  case  should  be  determined  by  itself,  the  Supreme 
Court  in  each  instance  deciding  whether  the  State  law 
in  question  is,  or  is  not,  regulative  of  a  matter  properly 
requiring  national  control. 

Among  the  more  important  subjects  which,  it  has  been 
held,  may,  in  the  absence  of  Federal  legislation,  be  con- 
trolled by  the  States,  because  they  lend  themselves  to 
local  regulation,  are  ferries,  bridges,  pilotage  and  harbor 
regulations.23 


22 125  U.  S.  465;  8  Sup.  Ct.  Rep.  689;  31  L.  ed.  700. 

23  In  Covington   Bridge  Co.   v.   Kentucky,    154  U.   S.   204;   14 
Sup.  Ct.  Rep.  1087;  38  L.  ed.  962,  the  cases  are  reviewed  and  sum- 
marized. 
16 


242  PRINCIPLES  OF  THE  CONSTITUTIONAL 

The  police  powers  of  the  States  and  commerce 

Very  closely  related  to  the  authority  of  the  States  to 
legislate  with  reference  to  commercial  matters  of  a  local 
character,  is  the  power  of  the  States,  in  the  exercise  of 
their  police  powers  to  enact  and  enforce  measures  which 
incidentally,  but  often  substantially,  affect  interstate 
commerce. 

The  distinction  which  is  drawn  between  these  police 
powers  of  the  States,  and  their  authority  to  enforce  local 
commercial  regulations  is  that,  in  the  absence  of  counter- 
vailing Federal  legislation,  the  latter  are  valid  even  though 
conceded  to  bear  directly  upon  interstate  or  foreign  com- 
merce; whereas  the  police  regulations  are  only  valid  when 
their  influence  upon  interstate  or  foreign  commerce  is  an 
incidental,  indirect  one.  In  other  words,  as  to  matters 
of  local  concern,  the  States  are  recognized  to  have  a  con- 
current power  in  the  fields  of  interstate  and  foreign  com- 
merce; while  as  to  police  measures  (and  the  same  is  true 
as  to  tax  laws  or  other  State  laws  for  the  regulation  of 
domestic  commerce)  the  States  have  an  authority  which 
is  not  concurrent  with  that  of  the  United  States,  but  which 
is,  when  kept  within  its  proper  sphere,  exclusive  of  Federal 
control.  Thus,  local  regulations,  even  though  they  oper- 
ate directly  upon  interstate  and  foreign  commerce,  are 
valid  unless  and  until  there  is  Federal  legislation  concerning 
the  same  subject.  Tax  laws,  laws  for  the  regulation  of 
domestic  commerce  and  police  regulations,  upon  the  other 
hand,  have  no  constitutional  validity  whatever  if  they 
operate  directly  and  primarily  as  a  restraint  upon  inter- 
state or  foreign  commerce  as  such. 

To  the  writer  it  would  seem  that  the  foregoing  dis- 
tinction between  the  concurrent  local  legislative  powers 
and  the  police  powers  of  the  States  with  reference  to  inter- 
state and  foreign  commerce  is  an  unnecessary  and  con- 
fusing one,  for  the  fact  is  to  be  noted  that  all  the  local 


LAW  OF  THE  UNITED  STATES  243 

regulations  which  have  been  referred  to  in  the  preceding 
section  may  properly  be  described  as  police  regulations 
and  justified  as  such.  If,  and  when,  so  justified,  it  will 
be  possible  for  the  courts,  without  changing  substantially 
the  effect  of  its  holdings,  to  accept  finally  and  completely 
the  doctrine  of  the  exclusiveness  of  Federal  authority  over 
interstate  and  foreign  commerce,  and  base  the  validity  of 
local  State  commercial  regulations  not  upon  a  State,  con- 
current legislative  power  as  to  local  matters,  but  upon  the 
States'  police  or  other  reserved  powers.  However,  the 
courts  still  recognize  the  distinction  between  the  two  sour- 
ces of  State  power  to  affect  interstate  commerce  by  their 
legislation,  and  this  distinction  is,  therefore,  here  recog- 
nized. 

That  a  State  law  which,  in  its  essential  nature,  is  a  legiti- 
mate exercise  of  the  police  powers  is  not  rendered  invalid 
by  reason  of  the  fact  that  interstate  commerce  is  thereby 
incidentally  affected  is  well  established.24 

This  interference  with  interstate  and  foreign  commerce, 
it  is  to  be  emphasized,  is  permitted  only  when  the  neces- 
sities and  the  convenience  of  the  public  seem  to  demand  it 
and  when  the  regulation  provided  for  is  a  reasonable  and 
just  one.  In  other  words,  the  States  may  not,  under  the 
guise  of  an  exercise  of  their  police  powers,  attempt  what 
in  effect  amounts  to  a  direct  regulation  of  interstate  and 
foreign  commerce,  or  impose  an  unnecessary  or  arbitrary 
burden  upon  interstate  carriers.  As  will  later  appear  the 
same  principle  applies  to  the  exercise  of  the  other  powers 
of  the  States,  as  for  example,  the  power  to  tax,  or  to  regu- 
late domestic  commerce.  In  the  exercise  of  these  powers 
it  is  often  the  case  that  interstate  and  foreign  commerce 

24  Hennington  v.  Georgia,  163  U.  S.  299;  16  Sup.  Ct.  Rep.  1086;  41 
L.  ed.  166;  L.  S.  &  M.  S.  Ry.  Co.  v.  Ohio,  173  U.  S.  285;  19  Sup.  Ct. 
Rep.  465;  43  L.  ed.  702;  Houston  v.  Mayes,  201  U.  S.  321;  26  Sup. 
Ct,  Rep.  491;  SOL.  ed.  772. 


244  PRINCIPLES  OF  THE  CONSTITUTIONAL 

are  indirectly  and  even  substantially  affected.  But  in  no 
case  may  regulation  of  interstate  and  foreign  commerce 
be  the  direct  or  primary  aim  of  the  State's  action.  If  this 
is  the  aim  or  effect,  no  support  for  the  validity  of  the  law 
may  be  obtained  by  calling  the  law  a  police  regulation.25 

It  is  thus  evident  that  the  Federal  court  will  examine  a 
State  police  regulation  not  only  with  reference  to  the  fact 
whether  or  not  it  amounts  to  a  direct  regulation  of  inter- 
state commerce,  but  whether  its  provisions  are  in  them- 
selves sufficiently  reasonable,  practicable  and  just,  as  to 
furnish  an  excuse  and  justification  for  the  incidental  inter- 
ference with  interstate  commerce  which  their  enforcement 
will  necessitate. 

Finally,  with  reference  to  the  police  powers  of  the  States 
and  interstate  commerce,  it  is  to  be  observed  that  however 
incidental  their  effect  upon  interstate  commerce  they  have, 
of  course,  no  validity  in  so  far  as  they  conflict  with  existing 
Federal  statutes.  In  Houston  v.  Mayes26  the  court  say: 
"Of  course  such  [police]  rules  are  inoperative  if  conflicting 
with  regulations  upon  the  same  subject  enacted  by  Con- 
gress." 

State  regulation  of  interstate  trains 

The  general  principles  governing  the  exercise  of  police 
powers  by  the  States  in  their  relation  to  interstate  com- 
merce have  been  stated.  It  remains  but  to  enumerate 
certain  of  the  applications  which,  in  specific  instances, 
these  doctrines  have  received. 

A  series  of  cases  have  been  decided  by  the  Supreme 
Court  with  reference  to  the  validity  of  State  laws  seeking 
to  control  the  manner  of  running  and  operating  trains. 
When  the  provisions  of  these  laws  have  been  found  reason- 
ably necessary  for  the  protection  and  convenience  of  the 

25  Henderson  v.  Mayor,  92  U.  S.  259;  23  L.  ed.  543. 

26  201  U.  S.  321 ;  26  Sup.  Ct .  Rep.  491 ;  50  L.  ed.  772. 


LAW  OF  THE  UNITED  STATES  245 

people,  and  not  discriminative  against  interstate  trains, 
they  have  been  upheld  in  their  application  to  such  inter- 
state trains.  Thus  State  laws  have  been  sustained  which 
have  forbidden  the  running  of  freight  trains  on  Sunday; 
forbidding  heating  cars  by  stoves;  requiring  trains  to  stop 
at  county  seats;  and  other  populous  centers;  requiring 
locomotive  engineers  to  be  examined  and  licensed  by  the 
State  authorities;  requiring  such  engineers  to  be  examined 
from  time  to  time  with  respect  to  their  ability  to  distin- 
guish colors;  requiring  telegraph  companies  to  receive 
dispatches  and  to  transmit  and  to  deliver  them  with  due 
diligence,  as  applied  to  messages  from  outside  the  State; 
requiring  railway  companies  to  fix  their  rates  annually 
for  the  transportation  of  passengers  and  freight,  and  also 
requiring  them  to  post  a  printed  copy  of  such  rates  at  all 
their  stations;  forbidding  the  consolidation  of  parallel  or 
competing  lines  of  railway;  regulating  the  heating  of  pas- 
senger cars,  and  directing  guards  and  guard  posts  to  be 
placed  on  railroad  bridges  and  trestles  and  the  approaches 
thereto;  providing  that  no  contract  shall  exempt  any  rail- 
road corp'orations  from  the  liability  of  a  common  carrier 
or  a  carrier  of  passengers,  which  would  have  existed  if  no 
contract  had  been  made;  and  declaring  that  when  a  com- 
mon carrier  accepts  for  transportation  anything  directed  to 
a  point  of  destination  beyond  the  terminus  of  his  own  line 
or  route,  he  shall  be  deemed  thereby  to  assume  an  obli- 
gation for  its  safe  carriage  to  such  point  of  destination; 
unless,  at  the  time  of  such  acceptance,  such  carrier  be  re- 
leased or  exempted  from  such  liability  by  contract  in 
writing  signed  by  the  owner  or  his  agent.27 

From  the  foregoing  it  will  appear  that  some  of  the  State 
police  regulations  which  have  been  sustained  in  their 

27  This  summary  is  substantially  taken  from  that  given  by  the 
court  in  Mo.  Pacific  Ry.  Co.  v.  Larabee  Flour  Mills  Co.,  211  U.  S. 
612;  29  Sup.  Ct,  Rep.  214;  53  L.  ed.  352. 


24(5  PRINCIPLES  OF  THE  CONSTITUTIONAL 

application  to  interstate  traffic  have  had  for  their  aim  not 
the  health,  morals  and  safety  of  the  people  of  the  States 
enacting  them,  but  simple  public  convenience.  In  Lake 
Shore,  etc.,  Ry.  Co.  v.  Ohio,28  in  which  prior  decisions  upon 
this  point  are  carefully  considered;  the  court  say:  "The 
power  of  the  State,  by  appropriate  legislation,  to  provide 
for  the  public  convenience,  stands  upon  the  same  ground 
precisely  as  its  power  by  appropriate  legislation  to  pro- 
tect the  public  health,  the  public  morals,  or  the  public 
safety.  Whether  legislation  of  either  kind  is  inconsistent 
with  any  power  granted  to  the  General  Government  is  to 
be  determined  by  .the  same  rules." 

But  in  Illinois  Central  Ry.  Co.  v.  Illinois29  a  State  law 
was  held  void  as  unnecessarily  restraining  interstate  com- 
merce which  required  trains  to  run  out  of  their  regular 
routes  in  order  to  make  certain  specified  stops.  So  also 
in  Mississippi  Railroad  Com.  v.  Illinois  Central  Ry.  Co.30 
was  held  void  an  order  of  a  State  railroad  commission  re- 
quiring a  railroad  company  to  stop  its  interstate  trains  at 
a  specified  county  seat,  when  proper  and  adequate  pas- 
senger facilities  were  already  otherwise  provided.  In  this 
case  the  fact  that  the  interstate  trains  were  carrying  the 
mails  is  given  as  one  of  the  reasons  why  they  should  not  be 
delayed  except  for  substantial  reasons. 

State  inspection  laws. 

State  inspection  laws  in  their  application  to  interstate 

28  173  U.  S.  285;  19  Sup.  Ct.  Rep.  465;  43  L.  ed.  702. 
-  29 163  U.  S.  142;  16  Sup.  Ct.  Rep.  1096;  41  L.  ed.  107. 

30  203  U.  S.  335;  27  Sup.  Ct.  Rep.  90;  51  L.  ed.  209.  See,  also 
Atlantic  Coast  Line  Ry.  Co.  v.  Wharton,  207  U.  S.  328,  28  Sup.  Ct. 
Rep.  121;  52  L.  ed.  230;  McNeill  v.  Southern  Ry.  Co.,  202  U.  S.  543; 
26  Sup.  Ct.  Rep.  722;  50  L.  ed.  1142;  L.  &  N.  Ry.  Co.  t>.  Central 
Stock  Yards  Co.,  212  U.  S.  132;  29  Sup.  Ct.  Rep.  246;  53  L.  ed.  441; 
W.  U.  Tel.  Co.  v.  James,  162  U.  S.  650;  16  Sup.  Ct.  Rep.  934;  40 
L.  ed.  1105. 


LAW  OF  THE  UNITED  STATES  247 

commerce  are  sustained  in  so  far  as  they  are  reasonable 
regulations  in  behalf  of  the  health,  safety  and  morality  of 
the  inhabitants  of  the  States  enacting  them,  or  for  their 
protection  against  fraud,  and  do  not  conflict  with  existing 
Federal  statutes.31 

It  will  later  be  seen  that  when  Congress  has  specifically 
or  inferentially  recognized  a  commodity  as  a  legitimate 
article  of  interstate  commerce,  it  may  not  be  excluded  by  a 
State  from  it's  borders  whether  by  an  inspection  or  other 
police  regulation.  And  even  as  to  all  other  articles  with 
reference  to  which  there  has  been  no  Federal  pronounce- 
ment, the  requirements  of  a  State  inspection  law  must  be 
reasonable  in  their  provisions.32 

Wild  game  within  a  State  is  not,  until  reduced  to 
possession,  private  property,  but  belongs  to  the  State, 
which  is  conceded  to  have  a  police  power  to  regulate  the 


31  In  Gibbons  v.  Ogden,  9  Wh.  1;  6  L.  ed.  23,  Marshall  says:  "The 
object  of  inspection  laws  is  to  improve  the  quality  of  articles  pro- 
duced by  the  labor  of  a  country;  to  fit  them  for  exportation;  or,  it 
may  be,  for  domestic  use.     They  act  upon  the  subject  before  it 
becomes  an  article  of  foreign  commerce,  or  of  commerce  between 
the  States,  and  prepare  it  for  that  purpose." 

32  For  cases  illustrating  the  State's  inspection  powers,  see  Turner 
v.  Maryland,  107  U.  S.  38;  2  Sup.  Ct.  Rep.  44;  27  L.  ed.  370;  People 
v.  Compagnie  Generate  Transatlantique,  107  U.  S.  59;  2  Sup.  Ct. 
Rep.  87;  27  L.  ed.  383;  Minnesota  v.  Barber,  136  U.  S.  313;  10  Sup. 
Ct.  Rep.  862;  34  L.  ed.  455;  Scott  v.  Donald,  165  U.  S.  58;  17  Sup. 
Ct.  Rep.  265;  41  L.  ed.  632;  Patapsco  Guano  Co.  v.  Board  of  Agri- 
culture, 171  U.  S.  345;  18  Sup.  Ct.  Rep.  862;  43  L.  ed.  191;  Asbell 
v.  Kansas,  209  U.  S.  251;  28  Sup.  Ct.  Rep.  485;  52  L.  ed.  778.    As  to 
the  constitutionality  of  State  quarantine  laws,  see  Railroad  Co.  v. 
Husen,  95  U.  S.  465;  24  L.  ed.  527;  Rassmussen  v.  Idaho,  181  U.  S. 
198;  21  Sup.  Ct.  Rep.  594;  45  L.  ed.  820;  Smith  v.  St.  Louis  Ry.  Co., 
181  U.  S.  248;  21  Sup.  Ct.  Rep.  603;  45  L.  ed.  847;  Reid  v.  Colorado, 
187  U.  S.  137;  23  Sup.  Ct.  Rep.  92;  47  L.  ed.  108;  Compagnie  Fran- 
gaise  v.  State  Board  of  Health,  186  U.  S.  380;  22  Sup.  Ct.  Rep.  811; 
46  L.  ed.  1209. 


218  "         PRINCIPLES  OF  THE  CONSTITUTIONAL 

times  and  methods  by  which  it  may  be  captured  and  killed, 
or  when  taken,  may  be  sold.  In  their  efforts  to  protect 
their  game  supplies  the  States  have  at  times  enacted  game 
laws  the  validity  of  which  has  been  contested  as  being 
regulations  of  interstate  commerce.33 

The  States  may  absolutely  exclude  from  their  borders  only 
such  articles  as  are  intrinsically  not  merchantable  or 
not  legitimate  articles  of  commerce 

In  the  exercise  of  their  police  powers  the  States  may 
absolutely  exclude  from  their  borders  only  such  articles 
as  are  in  themselves  not  merchantable  or  legitimate  arti- 
cles of  commerce.34 

This  power  of  exclusion  by  the  States  may  not  be  exer- 
cised by  the  States  with  reference  to  articles  as  a  class, 
unless  as  an  entire  class,  they  are  intrinsically  unfit  for 
commerce  and  not  merchantable.  In  all  other  cases  their 
unfitness  for  commerce  must  be  determined  by  inspection 
and  upon  reasonable  grounds. 

In  no  case  may  the  States  exclude  from  their  borders 
or  interfere  with  the  importation  of  such  articles  as  have 
directly  or  impliedly  been  recognized  by  Congress  as  legiti- 
mate articles  of  interstate  commerce.  And,  furthermore, 
it  is  an  established  principle  that  as  to  articles  legitimately 
the  subjects  of  commerce,  the  silence  of  Congress  as  to 
them  is  to  be  construed  as  equivalent  to  a  declaration  that 
interstate  trade  as  to  them  is  to  be  unrestricted.35 

These  principles  have  been  excellently  illustrated  with 
reference  to  State  liquor  and  oleomargarine  laws. 


33  Geer  v.  Connecticut,  161  U.  S.  519;  16  Sup.  Ct.  Rep.  600;  40  L. 
ed.  793. 

34  Bowman  v.  Chicago  &  Northwestern  Ry.  Co.,  125  U.  S.  465;  8 
Sup.  Ct.  Rep.  689;  31  L.  ed.  700. 

35  Leisy  v.  Hardin,  135  U.  S.  100;  10  Sup.  Ct.  Rep.  681;  34  L.  ed. 
128. 


LAW  OF  THE  UNITED  STATES  249 

Liquor  legislation 

In  Mugler  v.  Kansas36  certain  liquor  laws  of  the  State 
were  held  not  to  violate  the  due  process  clause  of  the  Four- 
teenth Amendment. 

In  the  License  Cases 37  the  constitutionality  of  the  liquor 
laws  of  a  number  of  the  States  was  considered  with  refer- 
ence to  both  the  Fourteenth  Amendment  and  the  commerce 
clause,  and,  upon  the  whole,  a  considerable  power  on  the 
part  of  the  States  to  regulate  the  sale  of  imported  liquors, 
recognized. 

But  in  Bowman  v.  Railroad 38  the  court  explained  that  it 
had  not  in  the  License  Cases  passed  squarely  upon  the  ap- 
plication of  State  laws  to  liquors  brought  into  the  States 
from  outside,  and,  in  the  case  at  bar,  held  invalid,  as  a 
regulation  of  interstate  commerce,  a  law  which  forbade 
any  common  carrier  to  bring  intoxicating  liquors  within 
the  State  from  any  other  States  or  Territories,  without 
first  obtaining  a  certificate  from  the  proper  State  officials 
that  the  consignees  were  licensed  by  the  State  to  sell  such 
liquors. 

The  argument  of  the  court  was  that  the  statute  in  ques- 
tion was  neither  an  inspection  law,  nor  a  police  measure 
confining  its  direct  operation  to  domestic  goods,  or  to  im- 
ported goods  after  they  had  become  commingled  with,  and 
therefore  a  part  of,  the  general  goods  of  the  State. 

The  Wilson  Act 

The  position  taken  by  the  Supreme  Court  in  the  Bow- 
man and  succeeding  cases  very  seriously  crippled  the 
powers  of  the  States  to  control  the  sale  of  intoxicating 
liquors  within  their  borders.  That  their  efficiency  in  this 
respect  might  be,  at  least  partially,  restored  to  them,  Con- 

36 123  U.  S.  623;  8  Sup.  Ct.  Rep.  273;  31  L.  ed.  205. 

37  5  How.  504;  12  L.  ed.  256. 

38 125  U.  S.  465;  8  Sup.  Ct.  Rep.  689;  31  L.  ed.  700. 


250  PRINCIPLES  OF  THE  CONSTITUTIONAL 

gress,  in  1890,  passed  the  so-called  Wilson  Act,39  which  act, 
still  in  force  provides:  "That  all  fermented,  distilled  or 
other  intoxicating  liquors  or  liquids  transported  into  any 
State  or  Territory,  or  remaining  therein  for  use,  consump- 
tion, sale  or  storage  therein,  shall,  upon  arrival  in  such 
State  or  Territory,  be  subject  to  the  operation  and  effect 
of  the  laws  of  such  State  or  Territory,  enacted  in  the  ex- 
ercise of  its  police  powers  to  the  same  extent  and  in  the 
same  manner  as  though  such  liquids  or  liquors  had  been 
produced  in  such  State  or  Territory  and  shall  not  be  ex- 
empt therefrom  by  reason  of  being  introduced  therein  in 
original  packages  or  otherwise." 

In  Re  Rahrer 40  the  Wilson  Act  was  held  constitutional.41 

Oleomargarine  cases 

In  Powell  v.  Pennsylvania42  the  court  held  that  a  State 
law  which,  as  a  police  regulation,  laid  down  certain  rules 
for  the  manufacture  and  sale  of  oleomargarine,  was  not, 
as  alleged,  a  violation  of  the  due  process  of  law  provision 
of  the  Fourteenth  Amendment. 


39  26  Stat.  at  L.  313. 

40 140  U.  S.  545;  11  Sup.  Ct.  Rep.  865;  35  L.  ed.  572. 

41  For  a  series  of  cases  interpreting  the  Wilson  Law,  and  especially 
the  meaning  of  the  phrase  "upon  arrival  in  such  State,"  see  Rhodes 
v.  Iowa,  170  U.  S.  412;  18  Sup.  Ct.  Rep.  664;  42  L.  ed.  1088;  Vance 
v.  Vandercook,  170  U.  S.  438;  18  Sup.  Ct.  Rep.  674;  42  L.  ed.  1100; 
Adams  Express  Co.  v.  Iowa,  196  U.  S.  147;  25  Sup.  Ct.  Rep.  185;  49 
L.  ed.  424;  Pabst  Brewing  Co.  v.  Crenshaw,  198  U.  S.  17;  25  Sup.  Ct, 
Rep.  552;  49  L.  ed.  925;  Heymann  v.  Southern  Ry.  Co.,  203  U.  S.  270; 
27  Sup.  Ct.  Rep.  104;  51  L.  ed.  178;  Delamater  v.  S.  Dakota,  205 
U.  S.  93;  27  Sup.  Ct.  Rep.  447;  51  L.  ed.  724;  Adams  Express  Co.  v. 
Kentucky,  206  U.  S.  129;  27  Sup.  Ct.  Rep.  606;  51  L.  ed.  987.  See 
also  §  238  of  the  Act  of  Congress  of  March  4,  1909,  codifying,  re- 
vising and  amending  the  penal  laws  of  the  United  States,  prohibit- 
ing all  but  bona  fide  C.  O.  D.  interstate  shipments  of  liquor.  Also, 
Senate  Rpt.  499,  60th  Cong.,  1st  Sess. 

42 127  U.  S.  678;  8  Sup.  Ct.  Rep.  992;  32  L.  ed.  253. 


LAW  OF  THE  UNITED  STATES  251 

In  Plurnley  v.  Massachusetts 43  the  court  again  upheld  a 
drastic  State  law  regulating  the  manufacture  and  sale  of 
articles  simulating  butter,  as  being  in  violation  neither  of 
the  Fourteenth  Amendment,  nor  of  the  Commerce  Clause, 
even  when  applied  to  such  articles  brought  from  other 
States.  The  validity  of  the  law  was  sustained  as  a  legiti- 
mate police  provision  against  fraud,  the  court  as  to  this 
saying:  "It  will  be  observed  that  the  statute  of  Massachu- 
setts .  .  .  does  not  prohibit  the  manufacture  and  sale  of 
all  oleomargarine,  but  only  such  as  is  colored  in  imitation 
of  yellow  butter  produced  from  pure  unadulterated  milk 
or  cream  of  such  milk.  .  .  .  The  statute  seeks  to  sup- 
press false  pretences  and  to  promote  fair  dealing  in  the 
sale  of  an  article  of  food." 

In  Collins  v.  New  Hampshire 44  it  was  held  that  a  State 
cannot  render  an  article  of  interstate  commerce  unsalable, 
as  for  example  by  compelling  artificial  butter  to  be  colored 
pink,  any  more  than  it  can  prevent  its  importation. 

In  Schollenberger  v.  Pennsylvania,45  however,  the  court, 
when  asked  to  enforce  a  State  oleomargarine  law  with 
reference  to  the  importation  and  sale  in  the  original  pack- 
age of  oleomargarine  manufactured  in  another  State,  held 
the  law  void  in  so  far  as  its  application  to  interstate  and 
foreign  commerce  was  concerned.  Oleomargarine,  the 
court  held,  had  been  recognized  by  the  Federal  Govern- 
ment as  a  proper  subject  of  interstate  commerce,  and  it 
was,  therefore,  beyond  the  competence  of  the  States 
whether  in  the  exercise  of  their  police  powers  or  other  pow- 
ers, to  place  restrictions  upon  its  importation  or  exporta- 
tion. The  court,  after  a  review  of  earlier  cases,  say:  "The 
general  rule  to  be  deduced  from  the  decisions  of  this  court 
is  that  a  lawful  article  of  commerce  cannot  be  wholly  ex- 

43 155  U.  S.  461;  15  Sup.  Ct.  Rep.  154;  39  L.  ed.  223. 
44 171  U.  S.  30;  18  Sup.  Ct.  Rep.  768;  43  L.  ed.  60. 
45  171  U.  S.  1;  18  Sup.  Ct.  Rep.  757;  43  L.  ed.  49. 


252  PRINCIPLES  OF  THE  CONSTITUTIONAL 

eluded  from  importation  into  a  State  from  another  State 
where  it  was  manufactured  or  grown.  A  State  has  power 
to  regulate  the  introduction  of  any  article,  including  a  food 
product,  so  as  to  insure  purity  of  the  article  imported,  but 
such  police  power  does  not  include  the  total  exclusion  of 
an  article  of  food." 

The  States  and  foreign  corporations  doing  an  interstate 
commerce  business 

The  right  to  engage  in  interstate  commerce,  it  has  been 
often  declared,  is  a  Federal  right,  and  is,  therefore,  inde- 
pendent of  State  control.  In  Vance  v.  Vandercook,46  the 
right  of  the  individual  to  import  was  declared  to  be  "de- 
rived from  the  Constitution  of  the  United  States,  and  does 
not  rest  on  the  grant  of  the  State  law." 

Nor  can  a  State  render  illegal  or  in  any  way  restrain  the 
making  of  contracts  by  its  residents  with  reference  to  inter- 
state commerce.47 

So,  likewise,  it  is  established  that  a  State,  though  it  may 
refuse  admission,  or  attach  such  conditions  as  it  sees  fit  to 
the  entrance  of,  a  foreign  corporation  within  its  borders  for 
the  purpose  of  doing  business  generally  within  the  State,  it 
may  not  prevent  or  restrain  that  corporation,  any  more 
than  it  may  prevent  or  restrain  an  individual,  from  en- 
gaging in  interstate  commerce  within  its  borders.48 


46 170  U.  S.  438;  18  Sup.  Ct.  Rep.  674;  42  L.  ed.  1100. 

47  Delamater  v.  S.  Dakota,  205  U.  S.  93;  27  Sup.  Ct.  Rep.  447;  51 
L.  ed.  724. 

48  Paul  v.  Virginia,  8  Wall.  168;  19  L.  ed.  357;  Crutcher  v.  Ken- 
tucky, 141  U.  S.  47;  11  Sup.  Ct.  Rep.  851;  35  L.  ed.  649;  Pensacola 
Tel.  Co.  v.  W.  U.  Tel.  Co.,  96  U.  S.  1;  24  L.  ed.  708.    It  may.be  said, 
generally  that  a  State  cannot  exclude  from  its  borders  a  corporation 
in  the  employ  of,  or  performing  services  for,  the  Federal  Govern- 
ment.   Pembina  Co.  v.  Pennsylvania,  125  U.  S.  181;  8  Sup.  Ct.  Rep. 
737;  31  L.  ed.  650;  Postal  Tel.  Co.  v.  Adams,  155  U.  S.  688;  15  Sup. 
Ct.  Rep.  268;  39  L.  ed.  311. 


LAW  OF  THE  UNITED  STATES  253 

A  State,  though  not  able  to  exclude  from  its  borders  a 
federally  chartered  corporation  engaged  in  interstate  com- 
merce, is  not  compelled  to  aid  that  corporation  by  grant- 
ing to  it  any  special  privileges,  as,  for  example,  the  right 
of  eminent  domain.  Congress  may,  however,  endow  such 
a  corporation  with  the  right  of  eminent  domain,  which 
right  it  may  exercise  within  the  States  without  their  con- 
sent or  against  their  will. 

Foreign  corporations  "  doing  business  "  within  the  States 

Though,  as  we  have  seen,  a  State  may  not  prevent  a 
foreign  corporation  from  carrying  on  interstate  commerce 
business  within  its  borders,  it  may  prevent  it  from  doing 
business  generally  as  a  corporation  within  the  State;  or  it 
may  attach  such  conditions  as  it  sees  fit  to  the  doing  of  such 
business,  other  than  interstate  commerce,  as  a  corporation. 
But  permission  to  continue  to  do  an  interstate  business 
may  not  be  founded  upon  conditions  which,  in  effect,  in- 
terfere with  interstate  business. 

In  Western  Union  Telegraph  Co.  v.  Kansas  49  the  ex- 
actions that  may  be  made  by  a  State  of  a  foreign  cor- 
poration doing  an  interstate  commerce  business  as  a  pre- 
requisite to  doing  a  domestic  business  within  a  State  are 
carefully  considered  and  prior  adjudications  examined, 
and,  by  a  divided  court,  the  doctrine  declared  that  a 
charter  fee  of  a  certain  per  cent  of  the  entire  capital  stock 
might  not  be  exacted  of  a  foreign  telegraph  company  as  a 
condition  to  being  permitted  to  continue  to  do  an  intra- 
state  business  within  the  State.  This  exaction  the  major- 


49  216  U.  S.  1;  30  Sup.  Ct.  Rep.  190;  54  L.  ed.  355.  The  difficulty 
of  harmonizing  this  case  with  that  of  Security  Mutual  Ins.  Co.  v. 
Prewitt,  202  U.  S.  246;  26  Sup.  Ct.  Rep.  619;  50  L.  ed.  1013,  is  re- 
ferred to,  post,  p.  429.  See  also  Columbia  Law  Review,  XI,  393, 
article  "  Constitutional  Limitations  upon  State  Taxation  of  Foreign 
Corporations." 


254  PRINCIPLES  OF  THE  CONSTITUTIONAL 

ity  of  the  court  declared  to  be  in  essence  a  burden  and  tax 
on  the  company's  interstate  business  and  on  its  property 
located  and  used  outside  of  the  State. 

State  taxation  and  interstate  and  foreign  commerce 

It  has  already  been  shown  that  the  States  are  permitted, 
in  the  exercise  of  the  powers  reserved  to  them,  substantially 
to  affect  interstate  and  foreign  commerce,  so  long  as  this  in- 
terference is  an  indirect,  incidental  one,  and  the  legislation 
in  question  a  legitimate  and  bona  fide  exercise  of  a  reserved 
power,  and  not  in  contravention  to  any  existing  Fed- 
eral statute  or  regulation.  This  principle  holds  true  with 
reference  to  the  taxing  powers  of  the  States.  A  direct 
taxation  of  interstate  or  foreign  commerce,  that  is,  of  the 
goods  carried  as  exports  or  imports,  of  the  agencies  and 
instrumentalities  of  such  commerce  as  such,  or  of  the  act 
of  carrying  on,  or  the  right  to  engage  in  or  to  carry  on, 
interstate  and  foreign  commerce,  is  always  construed  as  a 
regulation  of  such  commerce,  and,  as  such,  beyond  the 
powers  of  the  States.50 

This  doctrine  has  now  for  many  years  been  so  well 
established  that  States  no  longer  attempt  to  tax  inter- 
state commerce  directly.  Many  State  tax  laws,  however, 
though  not  expressly  made  applicable  to  interstate  com- 
merce transactions,  have  so  substantially  burdened  com- 
merce among  the  States  as  to  raise  the  question  whether  or 
not  they  are  not  thus  brought  within  the  operation  of  the 
prohibition.  It  will  be  necessary,  therefore,  to  consider  the 
special  cases  in  which  the  constitutionality  of  State  tax 
laws  have  been  tested  by  the  Commerce  Clause. 


60  Leloup  v.  Mobile,  127  U.  S.  640;  8  Sup.  Ct.  Rep.  1383;  32  L.  ed. 
311.  A  State  may  not  enforce  the  collection  of  a  valid  tax  by  an 
injunction  restraining  an  individual  or  corporation  from  doing 
interstate  commercial  business.  W.  U.  Tel.  Co.  v.  Massachusetts, 
125  U.  S.  530;  8  Sup.  Ct.  Rep.  961;  31  L.  ed.  790. 


LAW  OF  THE  UNITED  STATES  255 

A  license  tax  on  an  importer,  or  on  the  business  of  im- 
porting goods  from  another  State,  is  a  taxation  of,  and> 
therefore,  an  unconstitutional  regulation  of  interstate 
commerce.51 

Where,  however,  a  company  is  doing  both  interstate  and 
intrastate  commerce  business,  a  license  tax  may  be  levied 
upon  the  latter  if  it  be  separable  from  the  former  and  if  the 
company  be  left  free,  should  it  desire  to  do  so,  to  give  up 
its  domestic  business  and  continue  undisturbed  its  inter- 
state transactions. 

It  must  clearly  appear,  however,  that  the  license  tax  is 
exclusively  upon  the  local  business,  and  that  its  payment 
is  not  a  condition  precedent  to  the  transaction  of  inter- 
state business.  And,  furthermore,  if  the  tax,  whatever 
its  name,  amounts  to  more  than  an  ordinary  tax  upon  the 
property  of  the  company  doing  both  an  interstate  and 
domestic  business,  it  will  be  held  void.52 

Tax  laws,  or,  indeed,  any  other  laws  of  a  State  discrim- 
inating against  non-resident  traders  or  against  the  prod- 
ucts of  other  States  are  void  as  interfering  with  inter- 
state commerce.53 

In  Robbins  v.  Shelby  County,  was  established  the  doc- 
trine that  the  negotiation  by  sales  agents  of  sales  of  goods 
which  are  in  another  State  for  the  purpose  of  introducing 
them  into  the  State  where  the  negotiation  is  had,  is  inter- 


51  Brown  v.  Maryland,  12  Wh.  419;  6  L.  ed.  678;  Leloup  v.  Mobile, 
127  U.  S.  640;  8  Sup.  Ct,  Rep.  1383;  32  L.  ed.  311. 

62  Pullman  Co.  v.  Adams,  189  U.  S.  420;  23  Sup.  Ct.  Rep.  494;  47 
L.  ed.  477;  Postal  Tel.  Cable  Co.  v.  Adams,  155  U.  S.  688;  15  Sup. 
Ct.  Rep.  268;  39  L.  ed.  311. 

"Ward  v.  Maryland,  12  Wall.  418;  20  L.  ed.  449;  Welton  v. 
Missouri,  91  U.  S.  275;  23  L.  ed.  347;  Guy  v.  Baltimore,  100  U.  S. 
434;  25  L.  ed.  743;  Webber  v.  Virginia,  103  U.  S.  334;  26  L.  ed.  565; 
Walling  v.  Michigan,  116  U.  S.  446;  6  Sup.  Ct.  Rep.  454;  29  L.  ed. 
691;  Darnell  v.  Memphis,  208  U.  S.  113;  28  Sup.  Ct.  Rep.  247;  52  L. 
t'd.  413. 


256  PRINCIPLES  OF  THE  CONSTITUTIONAL 

state  commerce  and  not  subject  to  regulation  or  taxation 
by  the  State.54 

As  has  been  before  seen,  when  property  which  has  been 
introduced  into  a  State  has  become  commingled  with  the 
other  property  of  the  State,  it  ceases  to  enjoy  the  protection 
of  the  Commerce  Clause.  And  thus  it  has  been  held  that 
peddlers,  as  distinguished  from  drummers,  that  is,  per- 
sons who  carry  with  them  the  articles  which  they  sell,  or  at 
least  supply  the  articles  sold  from  stocks  of  merchandise 
already  in  the  State,  may  be  required  to  pay  a  license 
fee,  even  though  they  deal  exclusively  in  goods  that  have 
been  imported  from  another  State;  provided,  however, 
of  course,  that  they  are  not  discriminated  against  because 
of  the  fact  that  they  sell  goods  brought  in  from  outside  the 
State.55 

State  taxation  of  articles  of  commerce 

Since  Brown  v.  Maryland,56  decided  in  1827,  it  has  been 
held  that  a  State  law  requiring  all  importers  of  foreign 
goods,  and  others  selling  the  same  by  wholesale  to  pay  a 
license  fee  is  repugnant  to  the  Commerce  Clause.  A  tax 
on  the  sale  of  an  imported  article  is  declared  to  be  a  tax 
on  the  article  itself;  and  a  tax  on  the  importer  a  tax  on  the 
business  of  importing. 

54  For  later  applications  of  the  doctrine,  see  Brennan  v.  Titusville, 
153  U.  S.  289;  14  Sup.  Ct.  Rep.  829;  38  L.  ed.  719;  Ficklen  v.  Shelby 
Co.,  145  U.  S.  1;  12  Sup.  Ct.  Rep.  810;  36  L.  ed.  601;  Stockard  v. 
Morgan,  185  U.  S.  27;  22  Sup.  Ct.  Rep.  576;  46  L.  ed.  785;  Caldwell 
v.  North  Carolina,  187  U.  S.  622;  23  Sup.  Ct.  Rep.  229;  47  L.  ed.  336; 
Norfolk  Ry.  Co.  v.  Sims,  191  U.  S.  441;  24  Sup.  Ct.  Rep.  151;  48  L. 
ed.  254;  Adams  Express  Co.  v.  Iowa,  196  U.  S.  147;  25  Sup.  Ct.  Rep. 
185;  49  L.  ed.  424;  Rearick  v\  Pennsylvania,  203  U.  S.  507;  27  Sup. 
Ct.  Rep.  159;  51  L.  ed.  295;  and  Ware  v.  Mobile,  209  U.  S.  405;  28 
Sup.  Ct.  Rep.  526;  52  L.  ed.  855. 

55  Machine  Co.  v.  Gage,  100  U.  S.  676;  25  L.  ed.  754;  Emert  v. 
Missouri,  156  U.  S.  296;  15  Sup.  Ct.  Rep.  367;  39  L.  ed.  430. 

56 12  Wh.  419;  6  L.  ed.  678. 


LAW  OF  THE  UNITED  STATES  257 

In  Woodruff  v.  Parham57  the  doctrine  declared  in  Brown 
v .  Maryland  was  declared  applicable  only  to  imports  from 
foreign  countries.  As  to  these  it  was  declared  that  the 
States  might  not  exercise  their  taxing  powers  until,  by  the 
breaking  of  the  original  package,  or  sale  by  the  importer, 
they  had  become  commingled  with  the  general  goods  of 
the  States.  This  limitation  upon  the  taxing  powers  of 
the  States  was  deduced  from  the  constitutional  prohibi- 
tions as  to  the  laying  of  export  or  import  duties. 

As  to  goods  brought  into  the  State  from  other  parts  of 
the  United  States,  however,  it  was  held  that  the  constitu- 
tional prohibition  does  not  apply,  the  terms  export  and  im- 
port duties  being  declared  to  relate  to  foreign  commerce 
only.  And  as  to  the  Commerce  Clause  it  was  held  that 
so  long  as  the  articles  brought  in  are  not  discriminated 
against,  no  interference  with  interstate  commerce  is 
caused  by  their  taxation,  even  in  their  original  packages 
and  unsold  in  the  hands  of  their  original  consignee. 

It  will  thus  be  seen  that  though  the  States  ma}'  not, 
without  the  permission  of  Congress,  extend  the  authority 
of  their  police  regulations  over  articles  of  interstate  com- 
merce so  long  as  they  remain  unsold  and  in  their  original 
packages  in  the  hands  of  their  original  consignees,  the  law 
is  otherwise  as  regards  the  taxing  power.58 

State  taxation  of  goods  in  transit 

A  difficulty  which  has  not  infrequently  arisen  with  refer- 
ence to  the  amenability  of  articles  of  interstate  commerce 


57  8  Wall.  123;  19  L.  ed.  382. 

58  The  right  to  sell  is  held  to  be  a  part  of  the  right  to  import  and 
may  not  be  restrained  or  interfered  with  by  a  State  whether  the 
article  be  from  another  State  or  from  a  foreign  country.     But,  it  is 
declared  that  a  tax,  if  not  discriminative,   does  not  operate  as  a 
restraint  or  as  a  regulation,  whereas  an  exercise  of  the  police  power 
does  so  operate. 

17 


258  PRINCIPLES  OF  THE  CONSTITUTIONAL 

to  State  taxation  is  the  question  when  an  article  may 
fairly  be  said  to  be  in  transitu  and  when  it  may  be  said  to 
have  obtained  a  taxable  situs  in  the  State.  That  an  article 
actually  in  transit  from  one  State  to  another  is  not  taxable 
by  a  State  is  admitted.  That  an  article  manufactured 
for  interstate  trade  and  intended  to  be  sent  outside  the 
State,  but  its  transportation  thither  not  yet  begun,  is 
taxable  in  the  State  where  located,  is  equally  well  estab- 
lished.59 

State  taxation  of  persons  in  transit 

The  right  of  persons  to  travel  from  State  to  State, 
though  apparently  not  strictly  upheld  during  the  early 
years  of  the  Constitution,  has  been,  since  the  middle  of 
the  last  century,  well  established.  Though  questioned  and 
not  clearly  sustained  in  New  York  v.  Miln,60  and  the  Li- 
cense Cases,61  it  was  definitely  declared  in  the  Passenger 
Cases,62  decided  in  1848,  that  persons  are  subjects  of  com- 
merce, and,  therefore,  that  their  travel  from  State  to 
State  is  protected  by  the  Commerce  Clause  from  State 
interference.  Also  in  Crandall  v.  Nevada,63  decided  in 
1868,  the  right  was  held  to  be  one  which  attaches  to  Fed- 
eral citizenship,  and,  therefore,  protected  from  State  inter- 
ference independently  of  the  Commerce  Clause. 


59  Brown  v.  Houston,  114  U.  S.  622;  5  Sup.  Ct.  Rep.  1091;  29  L.  ed. 
257;  Coe  v.  Errol,  116  U.  S.  517;  6  Sup.  Ct.  Rep.  475;  29  L.  ed.  715; 
Diamond  Match  Co.  v.  Ontonagon,  188  U.  S.  82;  23  Sup.  Ct.  Rep. 
266;  47  L.  ed.  394;  Kelly  v.  Rhoads,  r88  U.  S.  1;  23  Sup.  Ct.  Rep. 
259;  47  L.  ed.  359;  American  Steel  &  Wire  Co.  v.  Speed,  192  U.  S. 
500;  24  Sup.  Ct.  Rep.  365;  48  L.  ed.  538. 

60 11  Pet.  102;  9  L.  ed.  648. 

61  5  How.  504;  12  L.  ed.  256. 

62  7  How.  283;  12  L.  ed.  702.    See,  also,  Henderson  v.  Mayor,  92 
U.  S.  259;  23  L.  ed.  543;  and  People  v.  Compagnie  Gene"rale  Trans- 
atlantique,  107  U.  S.  59;  2  Sup.  Ct.  Rep.  87;  27  L.  ed.  383. 

63  6  Wall.  35;  18  L.  ed.  745. 


LAW  OF  THE  UNITED  STATES  259 

Taxation  of  property  of  interstate  carriers 

The  right  of  the  States  to  tax  property,  as  such,  of  com- 
panies doing  an  interstate  commerce  business,  is  deter- 
mined by  the  same  principles  as  those  stated  in  Union 
Pacific  R.  R.  Co.  v.  Peniston,64  namely,  that  "  State  taxa- 
tion is  dependent,  not  upon  the  nature  of  the  agents,  or 
upon  the  mode  of  their  constitution,  or  upon  the  fact  that 
they  are  agents,  but  upon  the  effect  of  the  tax;  that  is, 
upon  the  question  whether  the  tax  does  in  truth  deprive 
them  of  power  to  serve  the  government  as  they  were  in- 
tended to  serve  it,  or  does  hinder  the  efficient  exercise  of 
this  power.  A  tax  upon  their  property  has  no  such  neces- 
sary effect.  It  leaves  them  free  to  discharge  the  duties 
they  have  undertaken  to  perform.  A  tax  upon  their  opera- 
tion is  a  direct  obstruction  to  the  exercise  of  Federal 
powers."  65 

In  determining  for  purposes  of  taxation  the  amount  of 
rolling  stock  of  an  interstate  carrier,  it  has  been  held  that 
a  State  may  ascertain  the  average  number  of  cars  contin- 
uously employed  in  the  State,  though  no  particular  car 
may  in  fact  be  kept  permanently  employed  in  the  State.66 

When  valuing  the  property  of  carrier  companies  whose 
property  extends  over  several  States,  each  State  is  per- 
mitted to  tax  the  amount  of  property  within  its  own  limits 


64 18  Wall.  5;  21  L.  ed.  787. 

65  See  also  Postal  Telegraph  Cable  Co.  v.  Adams,  155  U.  S.  688; 
15  Sup.  Ct.  Rep.  268;  39  L.  ed.  311;  Henderson  Bridge  Co.  v.  Ken- 
tucky, 166  U.  S.  150;  17  Sup.  Ct.  Rep.  532;  41  L.  ed.  953;  Keokuk 
Bridge  Co.  v.  Illinois,  175  U.  S.  626;  20  Sup.  Ct.  Rep.  205;  44  L.  ed. 
299.    Vessels,  for  purposes  of  taxation  usually  are  treated  as  having 
their  situs  at  their  home  ports,  that  is,  where  registered.     Where, 
however,  permanently  located  in  another  State  and  doing  business 
there,  they  may  be  taxed  there.    See  Judson,  On  Taxation,  §  187. 

66  Pullman  Palace  Car  Co.  v.  Pennsylvania,  141  U.  S.  18;  11  Sup. 
Ct.  Rep.  876;  35  L.  ed.  613;  Am.  Refrigerator  Transit  Co.  v.  Hall, 
174  U.  S.  70;  19  Sup.  Ct.  Rep.  599;  43  L.  ed.  899. 


260  PRINCIPLES  OF  THE  CONSTITUTIONAL 

and  to  give  to  that  amount  a  value  bearing  the  same  pro- 
portion to  the  value  of  the  entire  property  of  the  company 
as  the  length  of  railway  or  telegraph  or  telephone  line  bears 
to  the  total  length  of  the  carrier  system  which  is  assessed.67 

The  courts  have,  however,  at  times  pointed  out  that  this 
method  of  assessment  is,  after  all,  but  a  convenient  one 
applicable  in  some  cases,  and  that  it  is  not  to  be  erected 
into  an  absolute  principle;  for  it  might  not  be  acceptable 
in  those  cases  where  it  would  work  obvious  injustice.  An 
example  of  this  would  be  where  a  railroad  company  has  a 
large  mileage  in  one  State,  but  over  land  where  construc- 
tion expenses  had  been  very  inexpensive,  and  where  ter- 
minal facilities  were  few  and  not  costly,  while  in  another 
State  its  mileage  is  small,  but  of  expensive  construction, 
and  its  terminal  facilities  elaborate  and  costly. 

In  Adams  Express  Co.  v.  Ohio68  was  established  what  is 
known  as  the  "unit  of  use,"  rule,  according  to  which  the 
property  of  a  company  may  be  determined  as  a  unity,  if 
used  as  a  single  system,  and  that  its  value  may  be  assessed 
for  purposes  of  taxation  at  the  value  which,  as  such  a  unity, 
it  has  in  use,  namely,  the  net  profits  which  it  produces, 
and  irrespective  of  what  may  be  the  value  of  the  tangible 
property  which  is  owned  or  employed;  and  that  where 
this  system  extends  into  two  or  more  States  each  State 
may,  for  purposes  of  taxation,  consider  as  within  its  borders 
an  amount  of  property  proportioned  to  the  whole,  as  the 
amount  of  business  done  within  the  State  is  proportioned 
to  the  whole  amount  of  business  done. 

State  taxation  of  receipts  from  interstate  commerce 
A  State  tax  directly  upon  and  measured  by  the  amount 


07  W.  U.  Tel.  Co.  v.  Massachusetts,  125  U.  S.  530;  8  Sup.  Ct.  Rep. 
961;  31  L.  ed.  790. 

fi8 165  U.  S.  194;  17  Sup.  Ct.  Rep.  305;  41  L.  ed.  683.  See,  also, 
Fargo  v.  Hart,  193  U.  S.  490;  24  Sup.  Ct.  Rep.  498;  48  L.  ed.  761. 


LAW  OF  THE  UNITED  STATES  261 

of  freight  carried  is,  as  to  interstate  freight,  a  tax  on  inter- 
state commerce  and  as  such  void.69 

The  law  with  reference  to  the  State  taxation  of  the  gross 
receipts  of  companies  doing  an  interstate  commerce  busi- 
ness is,  however,  not  in  as  definite  a  shape  as  might  be  de- 
sired.70 One  general  principle  may,  however,  be  deduced 
from  all  the  cases.  This  is  that  a  State  tax  is  invalid, 
whatever  its  form,  if  in  effect  it  lays  a  direct  burden  upon 
interstate  commerce;  and  that,  conversely,  a  state  tax  is 
valid,  however  measured,  (i.  e.  whether  by  gross  receipts 
or  otherwise)  or  (if  we  follow  the  doctrine  of  Maine  v, 
Grand  Trunk  Ry.)  whatever  its  form,  which  may  be  fairly 
held  to  be  a  tax  on  the  property  of  the  company,  whether 
tangible  or  intangible,  located  within  the  State.  The  tax 
being  thus  valid,  if  valid  at  all,  only  as  a  property  tax,  it 
may  never  amount  to  more  than  an  ordinary  property  tax, 
and  its  non-payment  may  never  involve  a  forfeiture  of  the 
right  of  the  company  to  do  an  interstate  commerce  busU 
ness.  The  doctrine  of  Maine  v.  Grand  Trunk  Ry.  Co.  that 
a  tax  measured  by  the  gross  receipts  may  be  sustained  as  a 
franchise  or  excise  tax  upon  the  right  of  the  company  to  do 
business  within  the  State  is  certainly  unsound,  and  is  so 
recognized  by  the  court  in  Galveston  H.  &  S.  A.  R.  R.  Co. 
v.  Texas. 

Perhaps  the  general  doctrine  which  we  have  been  con- 
sidering is  best  stated  and  illustrated  in  Postal  Telegraph 
Cable  Co.  v.  Adams,71  in  which  it  was  held  that  a  State 
has  the  power  to  levy  on  a  foreign  telegraph  company  do- 


69  State  Freight  Tax  Case,  15  Wall.  232;  21  L.  ed.  146. 

70  See  State  Tax  on  Ry.  Gross  Receipts,  15  Wall.  284;  21  L.  ed.  164; 
Philadelphia  S.  S.  Co.  v.  Pennsylvania,  122  U.  S.  326;  7  Sup.  Ct.  Rep. 
1118;  30  L.  ed.  1200;  Maine  v.  Grand  Trunk  Ry.  Co.,  142  U.  S.  217; 
12  Sup.  Ct.  Rep.  121;  35  L.  ed.  994;  Galveston  H.  &  S.  A.  Ry.  Co. 
v.  Texas,  210  U.  S.  217;  28  Sup.  Ct.  Rep.  638;  52  L.  ed.  1031. 

71  155  U.  S.  688;  15  Sup.  Ct,  Rep.  268;  39  L.  ed.  311. 


262  PRINCIPLES  OF  THE  CONSTITUTIONAL 

ing  both  a  domestic  and  an  interstate  business  a  franchise 
tax,  the  amount  thereof  being  graduated  according  to  the 
value  of  the  property  within  the  State,  such  tax  being  in 
lieu  of  all  other  taxes.  Though  in  terms  a  franchise  tax, 
the  tax  was  held  valid  as,  in  fact,  taking  the  place  of  a 
property  tax,  which  of  course,  the  State  might  constitu- 
tionally levy.  The  court  say:  "A  tax  (may  be)  imposed 
on  a  corporation  on  account  of  its  property  within  the 
State  and  may  take  the  form  of  a  tax  on  the  privilege  of 
exercising  its  franchise  within  the  State,  and  if  the  ascer- 
tainment of  the  amount  is  made  dependent  in  fact  on  the 
value  of  its  property  situated  within  the  State  (the  exaction 
therefore,  not  being  susceptible  of  exceeding  the  sum  which 
might  be  levied  directly  thereon),  and  if  payment  be  not 
made  a  condition  precedent  to  the  right  to  carry  on  the 
business,  but  its  enforcement  left  to  the  ordinary  means 
devised  for  the  collection  of  taxes." 

Charter  provisions 

The  State  which  grants  a  charter  to  a  railroad  company 
may,  as  a  condition  precedent  to  the  grant,  stipulate  that 
the  company  shall  pay  into  the  State's  treasury  a  certain 
percentage  of  its  receipts,  or  be  liable  to  a  certain  tax  on 
the  amount  of  its  capital  stock,  or  to  a  special  property 
tax,  and  the  fact  that  these  receipts  are  derived  from  its 
interstate  commerce  business,  or  that  its  property  is  so 
employed  does  not  render  the  stipulation  void.  The  sums 
so  paid  are  not  paid  because  of  the  interstate  commerce 
done,  but  as  a  payment  to  the  State  for  the  charter  which 
it  has  obtained,  and  which  the  State  could  grant  or  with- 
hold as  it  might  see  fit.72 

But  a  State  may  not  in  a  charter  which  it  grants  reserve 
to  itself  a  right  to  regulate  the  interstate  commerce  busi- 

72  Railroad  v.  Maryland,  21  Wall.  456;  2^L.  ed.  678.  Cf.  Prentice 
and  Egan,  Commerce  Clause,  299,  and  authorities  there  cited. 


LAW  OF  THE  UNITED  STATES  263 

ness  of  a  corporation,  for  it  does  not  lie  within  the  power 
of  a  State  thus  by  its  own  act  to  obtain  an  authority  over 
matters  vested  exclusively  in  the  Federal  Government.73 

Taxation  of  capital  stock  of  interstate  commerce  companies 
Because  of  the  control  which  a  State  has  over  corpora- 
tions of  its  own  creation,  it  is  held  that  it  may  tax  the  en- 
tire capital  stock  of  domestic  corporations,  even  though 
some  of  the  property  of  these  corporations  is  situated  out- 
side of  the  taxing  State.  For  such  a  tax  is  held  to  be  not 
upon  the  property  which  in  large  measure  gives  the  value 
to  the  capital  stock,  but  upon  the  corporation  as  an  entity, 
over  which  entity  the  State  has  full  personal  jurisdiction. 
The  same  rule  is  applied  to  foreign  corporations  which  have 
been  permitted  to  consolidate  with  and  thus  become  con- 
stituent elements  of  domestic  corporations.74 

As  to  foreign  corporations  doing  interstate  commerce 
business,  it  is  held  that  their  capital  stock  may  be  taxed 
only  to  the  extent  that  such  corporations  have  property 
within  the  taxing  States.75 

State  regulation  of  carriers 
In  the  absence  of  Congressional  regulation  the  common 

73  Louisville  Ry.  Co.  v.  Railroad  Com.  of  Term.,  19  Fed.  Rep.  679. 

74  Ashley  v.  Ryan,  153  U.  S.  436;  14  Sup.  Ct.  Rep.  865;  38  L.  ed. 
773. 

75  Gloucester  Ferry  Co.  v.  Pennsylvania,  114  U.  S.  196;  5  Sup.  Ct. 
Rep.  826;  29  L.  ed.  158.    As  to  the  levying  of  a  franchise  tax  upon 
foreign  corporations  seeking  to  do  also  an  intrastate  business,  see 
W.  U.  Tel.  Co.  v.  Kansas,  216  U.  S.  1,  30  Sup.  Ct.  Rep.  190,  54  L.  ed. 
355,  and  Pullman  Co.  v.  Kansas,  216  U.  S.  56;  30  Sup.  Ct;  Rep.  232; 
54  L.  ed.  378.    In  W.  U.  Tel.  Co.  v.  New  Hope,  187  U.  S.  419;  23  Sup. 
Ct.  Rep.  204;  47  L.  ed.  240,  and  Atlantic  &  Pacific  Tel.  Co.  v.  Phil- 
adelphia, 190  U.  S.  160;  23  Sup.  Ct,  Rep.  817;  47  L.  ed.  995,  it  is  held 
that  a  State  tax  sufficient  to  meet  approximately  the  expenses  of 
legitimate  police  supervision  may  be  imposed  upon  an  interstate 
carrier. 


264  PRINCIPLES  OF  THE  CONSTITUTIONAL 

law  of  the  States  controls  with  reference  to  the  so-called 
common-law  rights,  duties,  and  responsibilities  of  inter- 
state carriers.  These  rights  and  duties  which  relate  to 
reasonableness  of  service,  impartiality  of  treatment  of 
shippers,  liabilities  either  contractual  or  in  tort  for  in- 
juries to  passengers  or  freights,  etc.,  have,  in  many  in- 
stances, it  is  apparent,  more  than  a  local  significance  and 
effect,  and  it  is,  therefore,  somewhat  difficult  to  justify, 
upon  principle,  the  constitutional  authority  of  the  States 
in  these  respects.  Practical  necessity  and  convenience 
seem,  however,  to  have  demanded  that  this  validity  should 
be  ascribed  to  the  common-law  of  the  States,  for  otherwise, 
in  the  absence  of  Congressional  regulation,  there  would  be 
no  law  whatever  for  the  courts  to  apply.76 

State  regulation  of  railway  rates 

The  general  constitutional  power  of  the  States  to  regu- 
late the  rates  of  public  service  corporations,  including 
railway  and  other  transportation  corporations,  whether 
of  domestic  or  foreign  incorporation,  or  of  industries  af- 
fected by  a  public  interest  is  well  established.  The  only 
Federal  limitations  upon  this  power  are:  those  of  the 
Fourteenth  Amendment  requiring  the  equal  protection 
of  the  laws  and  that  the  rates  thus  fixed  shall  not  be  so 
unreasonable  as  to  amount  to  a  taking  of  property  with- 
out due  process  of  law;  and  that,  under  the  guise  of  an 
attempt  at  the  regulation  of  domestic  services,  interstate 


™  W.  U.  Tel.  Co.  v.  Call  Pub.  Co.,  181  U.  S.  92;  21  Sup.  Ct.  Rep. 
561;  45  L.  ed.  765;  Mo.  Ry.  Co.  v.  Larabee  Flour  Co.,  211  U.  S.  612; 
29  Sup.  Ct.  Rep.  214;  53  L.  ed.  352;  McNeill  v.  Southern  Ry.  Co., 
202  U.  S.  543;  26  Sup.  Ct.  Rep.  722;  50  L.  ed.  1142;  Lake  Shore  Ry. 
Co.  v.  Ohio,  173  U.  S.  285;  19  Sup.  Ct.  Rep.  465;  43  L.  ed.  702.  As 
to  the  lack  of  a  Federal  common  law,  see  United  States  v.  Worrall, 
2  Ball.  384;  1  L.  ed.  426;  Wheaton  v.  Peters,  8  Pet.  591;  8  L.  ed. 
1055. 


LAW  OF  THE  UNITED  STATES  265 

commerce  shall  not  be  unduly  affected.  That  to  a  certain 
extent  the  regulation  of  domestic  railroad  rates  should 
affect  interstate  service  has  been  recognized  by  the  courts 
as  unavoidable,  but,  so  long  as  this  interference  is  not  too 
pronounced  or  serious,  the  laws  have  not  been  held  thereby 
unconstitutional  and  void.77 

In  still  further  limitation  of  the  power  of  the  States  to 
regulate  domestic  rates  of  public  service  corporations, 
is  the  doctrine  that  a  State,  in  determining  whether  a 
proposed  rate  will  leave  a  reasonable  net  profit  to  the 
company,  may  not  take  into  consideration  the  entire 
business  of  the  company  if  some  of  that  business  is  inter- 
state in  character.78 

Routes  running  outside  the  State  but  with  both  terminals 
within  the  State 

It  is  established  that  a  State  may  not,  without  violating 
the  Commerce  Clause,  fix  and  enforce  rates  for  the  con- 
tinuous transportation  of  goods  between  two  points  within 
the  State,  when  a  part  of  the  route  is,  however,  outside  the 
State.  The  doctrine  though  not  at  first  very  positively 
stated  may  be  considered  as  firmly  adopted  since  the  de- 
cision of  Hanley  v.  Kansas  City  Southern  Ry.  Co.79 

It  would  seem  that  the  doctrine  as  to  the  taxation  of 
receipts  for  transportation  over  routes  running  outside 


77  Wabash,  etc.,  Ry.  Co.  v.  Illinois,  118  U.  S.  557;  7  Sup.  Ct.  Rep. 
4;  30  L.  ed.  244,  modifying  the  doctrines  of  Munn  v.  Illinois,  94  U.  S. 
113;  24  L.  ed.  77,  and  other  cases.     The  subject  is  again  carefully 
examined  in  Covington  &  Cinn.  Bridge  Co.  v.  Kentucky,  154  U.  S. 
204;  14  Sup.  Ct.  Rep.  1087;  38  L.  ed.  962.     See  also  in  the  lower 
Federal  courts,  Shepard  v.  N.  P.  Ry.  Co.,  184  Fed.  765;  L.  &  N.  Ry. 
Co.  v.  Siler,  186  Fed.  176;  In  re  Arkansas  Rate  Cases,  187  Fed.  290. 

78  Smyth  v.  Ames,  169  U.  S.  466;  18  Sup.  Ct.  Rep.  418;  42  L.  ed. 
819.     As  to  railroads  federally  chartered  see  Reagan  v.  Trust  Co., 
154  U.  S.  418;  14  Sup.  Ct.  Rep.  1062;  38  L.  ed.  1030. 

79 187  U.  S.  617;  23  Sup.  Ct,  Rep.  214;  47  L.  ed.  333. 


266  PRINCIPLES  OF  CONSTITUTIONAL  L\\v 

the  State  but  between  points  within  the  State  is  not  to  be 
so  strictly  construed  against  the  States  as  is  that  of  the 
regulation  of  the  rates.  This  is  on  the  theory  that  the 
transportation  over  such  routes  is  a  unit  and  must  be 
charged  for  as  such,  whereas  a  tax  on  the  railway  company 
based  on  the  amount  of  transportation  over  its  roads  with- 
in the  State  is  a  reasonable  one.  Such  a  tax  as  this  was 
upheld  in  Lehigh  Valley  R.  R.  Co.  v.  Pennsylvania,80  and, 
it  is  to  be  admitted,  that  the  language  employed  by  the 
court  would  seem  to  indicate  that  commerce  carried  on 
between  two  points  within  the  same  State  is  to  be  consid- 
ered in  all  cases  domestic  even  when  part  of  the  route  lies 
outside  the  State.  But  when  the  attempt  was  made  to 
apply  the  same  doctrine  to  the  State  regulation  of  rates, 
the  court,  in  Hanley  v.  Kansas  City  Southern  Railway  Co. 
speaking  of  the  decisions  of  State  courts  which  had  applied 
the  doctrine  of  the  Lehigh  case  to  rate  regulations  said: 
"We  are  of  opinion  that  they  carry  their  conclusion  too 
far.  That  [the  Lehigh  case]  was  the  case  of  a  tax,  and 
was  distinguished  expressly  from  an  attempt  of  a  State 
directly  to  regulate  the  transportation  while  outside  its 
borders." 


«>  145  U.  S.  192;  12  Sup.  Ct.  Rep.  806;  36  L.  ed.  672. 


CHAPTER  XXXIII 

FEDERAL     LEGISLATIVE     POWER     OVER     INTERSTATE     COM- 
MERCE 

Federal  legislation 

In  the  chapters  which  have  gone  before,  the  extent  of 
the  powers  of  the  States  with  reference  to  interstate  com- 
merce has  been  considered.  In  the  present  chapter  we 
shall  have  to  deal  with  the  extent  of  the  regulative,  that 
is  to  say,  of  the  legislative  power,  granted  to  Congress  by 
the  Commerce  Clause. 

Until  1887  the  constitutional  power  granted  the  Fed- 
eral Government  by  the  Commerce  Clause  was  employed 
by  that  government  only  by  way  of  preventing  the  exer- 
cise of  unconstitutional  powers  by  the  States.  No  attempt 
was  made  up  to  that  time  to  put  into  exercise  the  affirma- 
tive legislative  powers  granted  by  that  clause.  In  1887, 
however,  an  act  of  Congress  was  passed  establishing  the 
Interstate  Commerce  Commission,  and  laying  down  cer- 
tain regulations  in  accordance  with  which  interstate  com- 
merce should  be  carried  on,  and  providing  for  the  enforce- 
ment of  these  regulations  by  the  Commission  and  by  the 
Federal  courts.  In  1890,  by  the  so-called  Sherman  Anti- 
Trust  Act,  interstate  commerce  was  subjected  to  still 
further  regulation;  and,  by  the  act  of  1906,  the  whole 
matter  of  railway  rates  was  subjected  to  affirmative 
Federal  control.  By  these  and  by  other  less  important 
legislative  acts,  as  well  as  by  other  and  more  radical  meas- 
ures which  have  been  urged  for  enactment  by  Congress, 
the  question  as  to  the  extent  of  the  legislative  powers  of 
Congress  with  reference  to  foreign  and  interstate  commerce 

267 


268  PRINCIPLES  OF  THE  CONSTITUTIONAL 

has  become  one  of  great  present  importance.  The  char- 
acter of  the  legislation  already  enacted  will  appear  in  the 
discussion  which  is  to  follow. 

Over  interstate  commerce,  the  Federal  Government  has 
an  authority  equal  in  extent  to  that  possessed  by  the 
States  over  domestic  commerce  or  by  the  United  States 
with  reference  to  foreign  commerce.  This  the  Supreme 
Court  has  repeatedly  declared.1 

The  control  of  interstate  and  foreign  commerce  being 
granted  to  the  Federal  Government  without  limitation, 
the  grant  is,  according  to  the  general  principle  governing 
the  interpretation  of  grants  of  Federal  powers,  construed 
to  be  plenary.  This  was  stated  in  absolute  terms  by 
Marshall  in  Gibbons  v.  Ogden,2  and  has  never  been  ques- 
tioned. "This  power,"  said  the  Chief  Justice,  "like  all 
others  vested  in  Congress,  is  complete  in  itself,  may  be 
exercised  to  its  utmost  extent,  and  acknowledges  no  lim- 
itations, other  than  are  prescribed  in  the  Constitution. 
These  are  expressed  in  plain  terms,  and  do  not  affect  the 
questions  which  arise  in  this  case,  or  which  have  been  dis- 
cussed at  the  bar.  If,  as  has  always  been  understood,  the 
sovereignty  of  Congress,  though  limited  to  specific  objects, 
is  plenary  as  to  those  objects,  the  power  over  commerce 
with  foreign  nations,  and  among  the  several  States,  is 
vested  in  Congress  as  absolutely  as  it  would  be  in  a  single 
government,  having  in  its  constitution  the  same  restriction 
on  the  exercise  of  the  power  as  are  found  in  the  Constitu- 
tion of  the  United  States." 

Federal  police  regulations 

Congress  has  enacted  various  laws  for  the  regulation  of 

1  Brown  v.  Houston,  114  U.  S.  622;  5  Sup.  Ct.  Rep.  1091;  29  L.  ed. 
257. 

2  9  Wh.  1;  6  L.  ed.  23.    See  also  Champion  &  Ames,  188  U.  S.  321; 
23  Sup.  Ct.  Rep.  321;  47  L.  ed.  492. 


LAW  OF  THE  UNITED  STATES  269 

interstate  and  foreign  commerce,  which,  so  far  as  their 
substance  is  concerned,  may  properly  be  denominated 
police  regulations.  Among  them  are  those  relating  to  the 
use  of  safety  appliances,  hours  of  service  of  employees, 
monthly  reports  of  accidents,  arbitration  of  controversies 
between  railroads  and  their  employees,  the  exclusion  of 
impure  goods  and  lottery  tickets  from  interstate  trans- 
portation, employers'  liability,  etc.  Strictly  speaking, 
however,  the  constitutional  authority  of  this  legislation 
has  not  been  derived  from  any  general  "police  power" 
possessed  by  the  Federal  Government,  but  from  the  grant 
of  authority  in  the  Commerce  Clause.  That  these  laws, 
in  so  far  as  they  are  constitutional,  draw  their  validity 
from  this  clause  and  not  from  a  Federal  police  power  is  a 
corollary  from  the  general  doctrine  that  the  General  Gov- 
ernment possesses  no  powers  whatever  except  by  way  of 
express  grant,  and  powers  implied  from  such  grants.3 

Prohibition  of  interstate  commerce 

That  the  power  to  regulate  includes  the  power  to  pro- 
hibit the  interstate  transportation  of  at  least  certain 
classes  of  commodities  has  been  placed  beyond  question 
by  the  decision  of  the  court  in  Champion  v.  Ames.4 

That  Congress  might  prohibit  commerce  with  the  In- 
dians had  been  decided  in  United  States  v.  Holliday,5  but 
for  the  authority  so  to  do  it  was  not  necessary  to  resort 
exclusively  to  the  Commerce  Clause.  So  also  the  power 
of  Congress  to  prohibit  foreign  commerce  was  early  exer- 
cised in  the  so-called  Embargo  Acts  at  the  time  of  the  War 
of  1812  but  here  also  a  source  of  authority  outside  the 
Commerce  Clause  could,  if  necessary,  be  found,  namely, 

:tS(v  Columbia  Law  Review,  IV,  563,  article  "Is  There  a  Federal 
Police  Power?"  by  Paul  Fuller. 

4  188  U.  S.  321;  23  Sup.  Ct.  Rep.  321;  47  L.  ed.  492, 

5  3  Wall.  407;  18  L,  ed,  182, 


270  PRINCIPLES  OF  THE  CONSTITUTIONAL 

in  the  control  of  international  relations.  When,  however, 
the  question  arose  as  to  prohibitions  upon  interstate  com- 
merce, the  argument  was  made  that  "regulation"  might  be 
federally  exercised  only  for  the  maintenance  of  perfect 
equality  as  to  commercial  rights  among  the  States,  and 
for  the  protection  and  encouragement,  and  not  for  the  de- 
struction of  interstate  trade.  The  authority  of  Congress  to 
exclude  diseased  cattle,  dangerous  explosives,  and  goods  and 
persons  infected  with  disease,  was  conceded,  for  thereby, 
it  was  pointed  out,  legitimate  interstate  commerce  was  in 
effect  protected  from  injury  or  destruction.  But  when  the 
question  arose  as  to  the  Federal  right  to  exclude  lottery 
tickets  from  interstate  transportation  which,  whatever 
might  be  the  morality  or  expediency  of  the  lottery  to 
which  they  related,  could  not,  in  themselves,  be  considered 
a  commodity  the  transportation  of  which  was  attended 
with  danger  of  injury  to  interstate  trade,  the  point  was 
urged  that  Congress  was  putting  the  Commerce  Clause 
to  a  use  which  its  framers  had  not  intended.  That,  in 
other  words,  the  term  "regulation"  as  employed  in  that 
term  could  not  properly  be  so  defined  as  to  include  meas- 
ures intended,  and  by  necessary  effect  calculated,  not  to 
protect  or  encourage  or  regulate  interstate  commerce  it- 
self, but  to  check  an  evil  the  control  of  which  by  direct 
legislation  was  admittedly  beyond  the  authority  of  Con- 
gress. 

To  this  argument,  the  Supreme  Court  in  Champion  v. 
Ames,  replied  that  lotteries,  though  in  earlier  years  con- 
sidered innocuous,  had  come  to  be  generally  viewed  as 
pestilential  and  as  such  had  come  under  the  ban  of  the 
law  of  most,  if  not  all,  of  the  States.  Therefore,  it  was 
argued,  the  traffic  in  lottery  tickets  is  one  "which  no  one 
can  be  entitled  to  pursue  as  of  right."  "If,"  the  court 
say,  "a  State,  when  considering  legislation  for  the  sup- 
pression of  lotteries  within  its  own  limits  may  properly 


LAW  OF  THE  UNITED  STATES  271 

take  into  view  the  evils  that  inhere  in  the  raising  of  money, 
in  that  mode,  why  may  not  Congress,  invested  with  the 
power  to  regulate  commerce  among  the  several  States, 
provide  that  such  commerce  shall  not  be  polluted  by  the 
carrying  of  lottery  tickets  from  one  State  to  another?  " 

As  regards  the  argument  that,  if  it  be  granted  that  the 
Federal  Government  has  the  power  to  prohibit  the  inter- 
state transportation  of  lottery  tickets,  it  will  logically 
follow  that  Congress  may  arbitrarily  exclude  from  inter- 
state commerce  any  article  or  commodity  it  may  see  fit, 
and  from  whatever  motive,  the  majority  justices  say:  "It 
will  be  time  enough  to  consider  the  constitutionality  of  such 
legislation  when  we  must  do  so."  The  court  however  add 
that  the  power  of  Congress  to  regulate  commerce  among 
the  States  though  plenary  is  not  arbitrary.  The  possible 
abuse  of  a  power  is,  nevertheless,  declared  to  be  no  argu- 
ment against  its  existence. 

By  §  I  of  the  so-called  Hepburn  Railway  Rate  Act  of 
1906,  it  is  provided  that  "From  and  after  May  first,  nine- 
teen hundred  and  eight,  it  shall  be  unlawful  for  any  rail- 
road company  to  transport  from  any  State,  Territory  or 
the  District  of  Columbia,  to  any  other  State,  Territory, 
or  the  District  of  Columbia,  or  to  any  foreign  country, 
any  article  or  commodity,  other  than  timber  and  the  manu- 
factured products  thereof,  manufactured,  mined,  or  pro- 
duced by  it,  or  under  its  authority,  or  which  it  may  own 
in  whole,  or  in  part,  or  in  which  it  may  have  an  interest, 
direct  or  indirect,  except  such  articles  and  commodities 
as  may  be  necessary  and  intended  for  its  use  in  the  conduct 
of  its  business  as  a  common  carrier." 

The  constitutionality  of  this  "Commodities  Clause" 
was  sustained  by  the  Supreme  Court  in  United  States  v. 
Delaware  &  H.  Ry.  Co.,6  decided  May  3,  1909.  The  objec- 


213  U.  S.  366;  29  Sup.  Ct.  Rep.  527;  53  L.  ed.  836.    In  United 


272  PRINCIPLES  OF  THE  CONSTITUTIONAL 

tions  that  it  was  in  violation  to  the  Fifth  Amendment  to 
the  Constitution  and  that  it  attempted  the  regulation  of 
a  matter  not  directly  concerned  with  interstate  commerce 
were  overruled.  It  was,  however,  declared  that  the  owner- 
ship by  a  railway  carrier  of  stock  in  bona  fide  corporations 
manufacturing,  producing  or  owning  the  commodity 
carried,  is  not  the  "interest  direct  or  indirect,"  in  such 
commodity,  forbidden  by  the  Act. 

As  regards  the  constitutionality  of  the  prohibition  as 
within  the  power  of  Congress  to  regulate  commerce,  the 
court  held  the  principle  to  have  been  practically  deter- 
mined in  the  case  of  New  York,  N.  H.  &  H.  R.  R.  Co. 
v.  Interstate  Commerce  Commission 7  in  which  it  was  held 
that  the  prohibitions  of  the  Interstate  Commerce  Act  as 
to  rebates  and  disuniformity  of  rates  operated  to  prevent 
a  carrier  from  buying  and  selling  a  commodity  in  such  a 
way  as  to  defeat  the  provisions  of  the  act,  and  that  as  so 
construed,  the  prohibition  was  constitutional  even  though 
it  might  have  the  effect  of  rendering  practically  impossible 
the  buying  or  selling  by  a  carrier  of  a  commodity  which 
it  transported.  The  court,  however,  say,  in  the  later 
case,  that  the  doctrine  is  not  rested  "upon  the  hypothesis 
that  the  power  conferred  embraces  the  right  to  absolutely 
prohibit  the  movement  between  the  States  of  lawful  com- 
modities, or  to  destroy  the  governmental  power  of  the 
States  as  to  subjects  within  their  jurisdiction,  however 
remotely  and  indirectly  the  exercise  of  such  powers  may 
touch  interstate  commerce." 

States  v.  Lehigh  Valley- R.  R.  Co.,  31  Sup.  Ct.  Rep.  377;  55  L. 
ed.  458,  however,  the  court  declare  that  the  construction  of  the 
earlier  case  does  not  exclude  from  the  operation  of  the  act  cases 
where  a  carrier  so  exerts  its  powers  as  a  stockholder  in  the  cor- 
poration owning  or  producing  the  commodity  carried  as  to  de- 
prive that  corporation  of  all  real  independent  existence  and  make  it 
virtually  an  agency  of  the  carrier. 
7  200  U.  S.  361;  26  Sup.  Ct.  Rep,  272;  50  L.  ed.  515. 


LAW  OF  THE  UNITED  STATES  273 

Whether  or  not  the  court,  when  the  question  is  squarely 
submitted  to  it,  will  hold  that,  under  its  power  to  regulate 
foreign  and  interstate  commerce,  Congress  has  an  un- 
limited power  to  exclude,  at  its  will,  commodities  from 
such  commerce  it  is  not  possible  to  say.8  The  Commodi- 
ties Clause  of  the  Hepburn  Act  was  sustained  as  directed 
against  a  practice  which  directly  interfered  with  free  and 
equal  competition  in  the  transportation  of  articles  be- 
tween the  States  and  between  the  United  States  and  for- 
eign countries.  It  was,  therefore,  not  the  arbitrary  ex- 
clusion of  certain  commodities  from  such  commerce. 
The  exclusion  of  lottery  tickets  was  indeed  expressly 
defended  upon  the  ground  that  the  lottery  business  is  a 
disreputable  one  and  harmful  to  the  public  and  in  fact 
prohibited  in  most  of  the  States.  But  the  business  it- 
self was  beyond  the  direct  control  of  Congress,  and  it 
would  seem,  therefore,  that  the  exclusion  was  really  an 
exercise  by  Congress  of  an  arbitrary  right  to  exclude.  It 
is  possible,  however,  that  the  court  may  distinguish  be- 
tween the  prohibiton  of  the  carrying  of  articles  which 
are  calculated  to  injure  or  deceive  those  to  whom  they 
are  sent,  (as  for  example  lottery  tickets  and  impure  and 
misbranded  foods  and  drugs,)  and  commodities  unobjec- 
tionable in  themselves,  but  manufactured  or  produced 
under  conditions  alleged  to  be  undesirable,  as  for  example, 
goods  produced  in  factories,  or  mines  employing  women 
or  children.  A  doctrine  justifying  the  power  of  Congress 
to  exclude  commodities  of  the  first  class,  and  denying  the 


8  The  right  of  Congress  to  exclude  from  interstate  and  foreign 
commerce  articles  in  themselves  obnoxious  or  dangerous  to  trans- 
port, as,  for  example,  explosives,  or  commodities  infected  with 
disease,  and  capable  of  spreading  the  infection,  is  of  course  clearly 
defensible  as  a  regulation  of  commerce.  In  the  Lottery  Case  the 
lottery  tickets  are  spoken  of  as  "polluting"  interstate  commerce, 
but  it  is  clear  that  this  could  not  be  so  in  any  real  sense  of  the  word. 
18 


274  PRINCIPLES  OF  THE  CONSTITUTIONAL 

power  as  to  articles  in  the  second  class,  can,  however, 
only  be  drawn  by  asserting  that  the  United  States  can- 
not rationally  be  presumed  to  be  obliged  to  lend  the  aid 
of  one  of  its  agencies  to  the  effectuation  of  what  Congress 
may  hold  to  be  an  evil.  But  to  this  it  may  be  replied  not 
only  that  by  promoting  interstate  and  foreign  commerce 
in  commodities  of  the  second  class  the  United  States 
really  gives  its  aid  to  a  business  of  which  it  disapproves 
as  much  as  it  would  by  permitting  commerce  in  articles 
of  the  first  class,  but  that,  by  assuming  as  a  premise  that 
interstate  and  foreign  commerce  carriers  act  as  agencies 
of  the  United  States,  the  position  is  necessarily  taken  that 
the  right  to  engage  in  interstate  and  foreign  commerce 
is  one  that  owes  its  existence  to  Federal  creation  and  not 
one  existing  under  State  law  but  subject  to  Federal  regu- 
lation. If  this  be  so,  the  plenary  power  of  Congress  to 
exclude  necessarily  follows,  for,  the  right  to  engage  in 
interstate  or  foreign  commerce  being  its  creation — express 
or  implied — the  authority  to  limit  or  deny  that  right 
necessarily  results.  It  would  seem  that  the  decision  in 
the  Lottery  Case  necessarily  involves  this  doctrine,  and 
yet  in  the  later  case  of  Howard  v.  Illinois  Central  R.  R. 
Co.,9  the  court  emphatically  repudiate  the  doctrine  that  a 
company  by  engaging  in  interstate  commerce  subjects 
itself  to  possible  Federal  regulation  of  all  its  activities,  and 
declare  that  it  rests  upon  the  conception  "that  the  Con- 
stitution destroyed  that  freedom  of  commerce  which  it 
was  its  purpose  to  preserve,  since  it  treats  the  right  to 
engage  in  interstate  commerce  as  a  privilege  which  cannot 
be  availed  of  except  upon  such  conditions  as  Congress 
may  prescribe,  even  although  the  conditions  would  be 
otherwise  beyond  the  power  of  Congress."  "It  is  ap- 
parent," the  court  continue,  "that  if  the  contention  were 


9  207  U.  S.  463;  28  Sup.  Ct.  Rep.  141;  52  L.  ed.  297. 


LAW  OF  THE  UNITED  STATES  275 

well  founded  it  would  extend  the  power  of  Congress 
to  every  conceivable  subject,  however  inherently-  local, 
would  obliterate  all  the  limitations  of  power  imposed  by 
the  Constitution,  and  would  destroy  the  authority  of  the 
States  as  to  all  conceivable  matters  which,  from  the  be- 
ginning, have  been,  and  must  continue  to  be,  under  their 
control  so  long  as  the  Constitution  endures." 

The  foregoing  statements  are  made  with  reference  to 
the  engaging  in  interstate  commerce  of  carrier  companies, 
and  not  as  to  the  recognition  or  denial  of  commodities  as 
legitimate  articles  of  interstate  commerce.  It  would 
seem  however,  that  the  principle  applicable  to  the  one 
would  necessarily  be  applicable  to  the  other.  If,  as  a  con- 
dition of  the  right  of  a  carrier  company  to  engage  in  in- 
terstate commerce,  Congress  may  not  require  conditions 
which  have  no  relation  to  that  commerce,  it  would  seem 
that  Congress  may  not  exercise  the  right  to  exclude  articles 
from  commerce  except  in  so  far  as  there  is  some  quality 
peculiar  to  such  articles  which  renders  their  transportation 
dangerous  or  otherwise  objectionable.  Yet,  as  has  been 
seen,  the  exclusion  of  lottery  tickets  from  interstate  com- 
merce was  upheld  though  no  such  characteristic  could  be 
predicated  of  them. 

It  is  clear  then  that  the  Lottery  Case  cannot  be  har- 
monized with  the  Howard  Case,  and  that  if  the  necessary 
premise  of  that  case  that  the  right  to  engage  in  interstate 
commerce  is  a  federally  created  one,  and  interstate  com- 
merce itself  an  instrument  of  the  Federal  Government, 
be  pushed  to  its  logical  extreme  there  is  justified  that 
obliteration  of  State  powers  which  is  described  in  the 
Howard  case. 

The  Federal  Employers'  Liability  Law  of  1906 

In  1906  Congress  passed  an  act  entitled  "An  Act  Relat- 
ing to  the  Liability  of  Common  Carriers  in  the  District  of 


276  PRINCIPLES  OF  THE  CONSTITUTIONAL 

Columbia  and  Territories  and  Common  Carriers  engaged 
in  Commerce  between  the  States  and  between  the  States 
and  Foreign  Nations  to  their  Employees,"  by  which  act 
the  fellow-servant  doctrine  of  the  common  law  was  con- 
siderably modified.  By  the  terms  of  this  act  "every  com- 
mon carrier  in  trade  or  commerce"  in  the  District  of  Col- 
umbia or  in  the  Territories  or  between  the  several  States 
was  made  liable  for  the  death  or  injury  of  "any  of  its  em- 
ployees" which  should  result  from  the  negligence  of  "any 
of  its  officers,  agents  or  employees."  It  thus  appears  that 
the  provisions  of  the  acts  were  made  applicable  to  these 
companies  irrespective  of  the  fact  whether  the  person  in- 
jured or  killed  was  engaged  at  the  time  in  interstate 
commerce.  The  only  criterion  prescribed  was  that  the 
employing  company  was  not  carrying  on  commerce  among 
the  States.  There  was  thus  raised  the  fundamental 
question  whether  the  simple  fact  that  a  company  or  cor- 
poration is,  in  any  part  of  its  business,  engaged  in  carrying 
on  interstate  commerce  renders  it  subject  to  Federal  regu- 
lation as  to  all  its  activities.  There  was  also  raised  the 
question  whether  the  relation  between  an  employing  com- 
pany and  its  employees  is  itself  a  part  of  the  interstate 
commerce  which  the  company  carries  on.  Both  of  these 
questions  were  discussed  in  Howard  v.  Illinois  Central 
R.  Co.10 

The  first  and  more  important  of  these  questions,  the 
court,  as  has  already  been  said,  answered  in  the  negative. 
The  relation  of  master  and  servant  was  declared  to  be 
connected  with  the  commerce  carried  on  by  the  former, 
and  as  such  subject  to  Federal  regulation  in  so  far  as  in- 
terstate transportation  might  be  concerned.  The  act  in 
question,  however,  was  held  not  so  limited,  and  was  there- 
fore declared  void.11 

"  207  U.  S.  463;  2S  Sup.  Ct.  Rep.  141;  52  L.  ed.  297. 

11  But  later  held  valid  as  to  the  District  of  Columbia,  and,  in- 


LAW  OF  THE  UNITED  STATES  277 

In  order  to  meet  the  constitutional  objections  raised  by 
the  Supreme  Court  to  the  act  of  1906,  Congress  in  1908 
enacted  a  measure  similar  to  the  earlier  law  except  that 
its  provisions  are  expressly  confined  to  actions  growing  out 
of  injuries  or  deaths  to  persons  while  actually  engaged  in 
carrying  on  interstate  commerce. 

The  constitutionality  of  this  measure  has  not  been 
passed  upon  by  the  Supreme  Court. 

By  a  series  of  acts  beginning  with  that  of  1893,  Congress 
has  sought  to  increase  the  safety  of  interstate  trains  by  re- 
quiring that  they  be  equipped  with  certain  safety  devices. 
The  constitutionality  of  these  measures  has  been  affirmed.12 
So  also  by  act  of  1907  Congress  has  limited  the  number  of 
hours  of  work  of  employees  upon  interstate  trains. 

By  an  act  of  October  1,  1888,  later  repealed  and  re- 
placed by  that  of  June  1,  1898,  Congress  has  made  pro- 
vision for  the  arbitration  of  disputes  between  interstate 
carriers  and  their  employees.  Section  10  declares  that 
it  shall  be  a  misdemeanor  for  an  employer  or  his  agent  to 
require  of  an  employee,  as  a  condition  of  employment,  that 
he  will  not  become  or  remain  a  member  of  a  trade  union,  or 
threaten  him  with  loss  of  employment  if  he  becomes  or 
remains  a  member. 

In  the  case  of  Adair  v.  United  States,13  an  agent  of  a 
railway  company  engaged  in  interstate  commerce,  was 
charged  with  having,  in  violation  of  the  Tenth  Section  of 
the  act  of  1898,  dismissed  from  the  service  of  the  company 
an  employee  because  of  his  membership  in  a  labor  organi- 
zation. Adair  set  up  the  unconstitutionality  of  this 
section  on  the  double  ground  that  it  was  a  violation  of  the 


ferentially,  as  to  the  Territories,  in  El  Paso  &  N.  W.  Ry.  Co.  v. 
Gutierrez,  215  U.  S.  87;  30  Sup.  Ct.  Rep.  21 ;  54  L.  ed.  106. 

12  St.  Louis,  etc.,  Co.  v.  Taylor,  210  U.  S.  281;  28  Sup.  Ct.  Rep. 
616;  52  L.  ed.  1061. 

13  208  U.  S.  161;  28  Sup.  Ct.  Rep.  277;  52  L.  ed.  436. 


278  PRINCIPLES  OF  THE  CONSTITUTIONAL 

Fifth  Amendment,  being  a  deprivation  of  liberty  without 
due  process  of  law;  and  that  it  was  not  justified  by  the 
Commerce  Clause,  and,  therefore,  void  as  relating  to 
matters  the  regulation  of  which  is  reserved  exclusively 
to  the  States.  Both  of  these  contentions  were  held  sound 
by  the  Supreme  Court.  As  to  the  latter  of  these  points, 
the  opinion  denies  that  there  is  any  "possible  legal  or 
logical  connection"  between  an  employee's  membership 
in  a  labor  organization  and  the  carrying  on  of  interstate 
commerce.  It  cannot  be  assumed,  the  court  assert,  that 
the  fitness  or  diligence  of  the  employee  is  in  any  wise  de- 
termined by  such  membership.  As  to  the  constitution- 
ality of  the  provisions  of  the  act  with  reference  to  arbitra- 
tion no  opinion  is  expressed. 

Regulation  of  interstate  railroad  rates 

The  regulation  of  railway  rates  may  be  directed  either 
to  the  prevention  of  discriminatory  treatment  as  between 
places  or  shippers,  or  to  the  prevention  of  unreasonably 
high  charges  for  service.  As  to  this  latter,  the  government 
may  limit  its  intervention  to  declaring  invalid,  if  excessive, 
rates  fixed  by  the  companies,  or  it  may  itself  undertake 
to  declare,  and  compel  the  acceptance  by  the  railway 
companies  of,  rates  which  are  considered  as  reasonably 
just. 

That  with  respect  to  interstate  transportation  the  Fed- 
eral Government  may  exercise  any  or  all  of  these  powers 
of  rate  regulation  is  established. 

The  general  principle  that  a  legislature  may  delegate 
to  a  commission  as  its  agent  the  application  to  specific 
cases  of  a  rule  legislatively  determined,  is  not  disputed. 

By  the  act  of  June  29,  1906,  it  is  declared  by  Congress 
that  "charges  for  interstate  transportation  of  passengers 
as  property  shall  be  just  and  reasonable;"  and  to  the  In- 
terstate Commerce  Commission  is  given  the  authority, 


LAW  OF  THE  UNITED  STATES  279 

after  having  decided  that  a  rate  in  force  is  not  a  proper 
one,  "to  determine  and  prescribe  what  shall  be  the  just 
and  reasonable  rate  or  rates,  charge  or  charges  to  be  there- 
after observed  in  such  case  as  the  maximum  to  be  charged." 
Thus  the  only  rule  for  determining  the  rates  which  Con- 
gress has  declared  for  the  guidance  of  the  Commission  in 
the  fixing  of  specific  rates  is  that  they  shall  be  just  and 
reasonable.  The  determination  of  when  these  very  gen- 
eral requirements  are  met  by  a  rate  is  left  in  each  case, 
to  the  judgment  of  the  Commission.14 

The  Federal  Anti-trust  Act 

By  the  Interstate  Commerce  Act  of  1887,  interstate 
railroads  are  forbidden  to  form  combinations  or  "pools" 
for  the  maintenance  of  rates,  whether  for  freight  or  pas- 
senger traffic.  By  the  act  of  July  2,  1890,  entitled  "An 
Act  to  Protect  Commerce  Against  Unlawful  Restraints 
and  Monopolies,"  a  general  prohibition  is  laid  upon  "every 
contract,  combination  in  the  form  of  trust  or  otherwise, 
or  conspiracy  in  restraint  of  trade  or  commerce  among  the 
several  States,  or  with  foreign  nations."  In  United  States 
v.  Trans-Missouri  Freight  Association 15  the  railroads  were 
held  to  be  included  within  this  general  prohibition. 

Based  upon  alleged  violations  of  this  act  of  1890  a 
series  of  suits  have  been  brought  and  have  received  final 
adjudication  by  the  Supreme  Court.  For  the  decision 
of  these  cases  the  court  has  found  it  necessary  to  consider 
more  carefully  than  in  any  other  set  of  cases  the  question 


14  The  questions  involved  in  the  power  of  the  courts  to  review 
decisions  of  the  Commission  are  discussed  in  the  chapter  "The  Con- 
clusiveness  of  Administrative  Determinations."     As  to  principles 
that  must  control  the  Commission  in  fixing  rates,  see  S.  Pacific  Ry. 
v.  Interstate  Com.  Com.,  219  U.  S.  433;  31  Sup.  Ct.  Rep.  288;  55  L. 
ed.  283. 

15  166  U.  S.  290;  17  Sup.  Ct.  Rep.  540;  41  L.  ed.  1007. 


280  PRINCIPLES  OF  THE  CONSTITUTIONAL 

what  constitutes  interstate  commerce,  and  what,  there- 
fore, are  the  limits  of  the  Federal  regulative  power  under 
the  Commerce  Clause.  Thus,  though  it  cannot  be  said 
that  these  cases  have  necessitated  the  enunciation  of 
constitutional  doctrines  not  elsewhere  stated,  or  already 
considered  in  this  treatise,  they  have  resulted  in  specific 
adjudications  which  serve  to  set  in  the  clearest  light  the 
extent  and  limits  of  the  Federal  commercial  power.  For 
this  reason  it  is  advisable  to  consider  these  cases  seriatim. 

In  Re  Green,  a  case  involving  the  status  of  the  Distilling 
and  Cattle  Feeding  Company,  which  controlled  95  per- 
cent, of  distilled  liquors  in  the  United  States,  the  court 
held  that  the  mere  magnitude  of  an  interstate  business 
did  not  bring  it  within  the  prohibition  of  the  Anti-Trust 
Act. 

The  first  case  to  reach  the  Supreme  Court  was  the  so- 
called  Sugar  Trust  Case  of  United  States  v.  E.  C.  Knight 
Co.16 

In  this  case  it  was  contended  by  the  Government  that 
the  acquisition  by  the  American  Sugar  Refining  Co.  of 
the  stock  of  a  number  of  sugar  refining  corporations  of 
Pennsylvania  was  with  the  object  and  effect  of  establish- 
ing a  substantial  monopoly  of  the  industry,  and  that  in- 
asmuch as  the  product  was  sold  throughout  the  country 
and  distributed  among  the  States,  the  provision  of  the 
act  of  1890  with  reference  to  the  monopolization  or  com- 
bination or  conspiracy  to  monopolize  trade  and  commerce 
among  the  States  was  violated.  The  court,  however, 
applying  the  doctrine  of  Coe  v.  Errol 17  and  Kidd  v.  Pear- 
son,18 held  that  the  act  did  not,  and  constitutionally  could 
not,  extend  to  combinations,  conspiracies  or  monopolies 
relating  to  the  manufacture  of  commodities,  this  being  a 

16 156  U.  S.  1;  15  Sup.  Ct.  Rep.  249;  39  L.  ed.  325. 
17 116  U.  S.  517;  6  Sup.  Ct.  Rep.  475;  29  L.  ed.  715. 
w  128  U.  S.  1;  9  Sup.  Ct,  Rep.  6;  32  L.  ed.  346. 


LAW  OF  THE  UNITED  STATES  281 

field*  reserved  exclusively  to  the  States.  The  fact  that 
interstate  or  foreign  trade  might  be  incidentally  affected 
was  declared  not  material. 

The  doctrine  laid  down  by  the  court  has  never  been  de- 
parted from,  and  is,  indeed,  one  from  which  there  would 
seem  to  be  no  logical  escape,  if  the  line  which  divides 
Federal  control  of  interstate  commerce  from  State  regu- 
lation of  local  industries  and  manufacturing  is  to  be  main- 
tained. In  applying  this  doctrine,  however,  the  court, 
in  later  cases,  has  shown  a  much  greater  readiness  to  find 
in  the  acts  complained  of,  a  direct  interference  with  in- 
terstate commerce,  and,  therefore,  a  ground  for  the  ap- 
plication of  the  Federal  statute. 

In  United  States  v.  Trans-Missouri  Freight  Association 19 
the  act  was  held  to  apply  to  railroads,  and  moreover,  that 
contracts  or  combinations  in  restraint  of  trade  were  by 
the  act  prohibited,  whether  or  not  those  contracts  were 
in  themselves  reasonable.  In  this  case  a  contract  between 
several  railway  companies  was  held  illegal,  and  the '  re- 
sulting association,  the  purpose  of  which  was  to  maintain 
rates  t  and  prevent  competition  over  a  territory  including 
a  number  of  States,  was  dissolved. 

In  United  States  v.  Joint  Traffic  Association20  the  doc- 
trine of  the  Trans-Missouri  Freight  Association  case  was 
affirmed. 

In  Hopkins  v.  United  States21  it  was  held  that  a  live 
stock  commission  merchant  whose  place  of  business  was 
a  certain  stock  yard  and  who  there  bought  and  sold  stock 
for  others,  was  not  engaged  in  interstate  commerce,  within 
the  meaning  of  the  act  of  1890,  although  the  stock  was 
shipped  to  him  from  another  State.  Therefore,  it  was 
held,  the  rules  and  regulations  of  an  association  of  live 

19 166  U.  S.  290;  17  Sup.  Ct.  Rep.  540;  41  L.  ed.  1007. 
20 171  U.  S.  505;  19  Sup.  Ct.  Rep.  25;  43  L.  ed.  259. 
21 171  U.  S.  578;  19  Sup.  Ct.  Rep.  40;  43  L.  ed.  290. 


282  PRINCIPLES  OF  THE  CONSTITUTIONAL 

stock  commission  merchants,  fixing  the  rates  to  be  charged, 
were  not  agreements  affecting  interstate  commerce. 

In  Anderson  v.  the  United  States,22  decided  the  same  day 
as  the  Hopkins  case,  an  association  of  dealers  in  live  stock, 
providing  by  its  rules  that  its  members  should  not  transact 
business  with  non-members,  nor  with  the  commission  men 
who  should  deal  with  non-members,  was  held  not  a  com- 
bination or  conspiracy  in  restraint  of  interstate  trade,  in- 
asmuch as  it  appeared  that  membership  was  open  to  all 
dealers,  and  no  attempt  was  made  to  control  prices  or  the 
number  of  cattle  bought  nor  in  anyway  to  prevent  full  com- 
petition between  the  members.  In  this  case  the  ground 
taken  by  the  court  was  not  so  much  that  the  combination 
did  not  relate  to  interstate  commerce,  as  that  there  was  no 
restraint  imposed  upon  commerce  by  its  rules,  nor  an  at- 
tempt to  monopolize  such  commerce. 

In  a  series  of  cases,  beginning  with  Addyston  Pipe  & 
Steel  Co.  v.  United  States,23  the  court  has  shown  that  com- 
binations or  agreements  between  manufacturers  or  deal- 
ers do  not  come  within  the  protection  of  the  doctrine  of 
the  Knight  case  if  it  appears  that  the  attempt  is  made  in 
any  way  directly  to  control  or  change  what  would  normally 
be  the  course  of  interstate  commerce  in  the  absence  of 
such  combinations  or  agreements. 

In  the  Addyston  case  six  companies,  engaged  in  the  man- 
ufacture and  sale  of  iron  pipe,  had  formed  a  combination 
whereby  competition  in  the  sale  of  iron  pipe  throughout 
the  United  States  was  practically  destroyed.  In  the  exer- 
cise of  the  power  thus  possessed,  the  combination  had 
allotted  to  its  several  member  companies  the  territory 
within  which  each  should  have  the  exclusive  right  to  sell 
its  products.  By  a  unanimous  opinion  the  court  held  the 


22 171  U.  S.  604;  19  Sup.  Ct.  Rep.  50;  43  L.  ed.  300. 
23  175  U.  S.  211;  20  Sup.  Ct.  Rep.  96;  44  L.  ed.  136. 


LAW  OF  THE  UNITED  STATES  283 

agreement  to  come  within  the  prohibition  of  the  act  of 
1890. 

In  Montague  v.  Lowry24  was  held  illegal  as  a  restraint 
of  interstate  commerce  an  association  of  dealers  in  the 
State  of  California  and  manufacturers  in  other  States, 
with  the  purpose  of  controlling  the  sale  of  their  product 
in  California.  Here  there  was  no  allotment  of  territory 
as  in  the  Addyston  case,  and,  except  as  to  the  provision 
of  the  agreement  that  the  non-resident  manufacturers 
should  sell  their  product  only  to  the  members  of  the  as- 
sociation in  California,  no  interstate  transaction  was  regu- 
lated. This  provision,  however,  it  was  held,  rendered  the 
entire  combination  a  violation  of  the  act  of  1890.  "It 
was  not  a  combination  or  monopoly  among  manufacturers 
simply  but  one  between  them  and  dealers  in  the  manu- 
factured article  of  commerce  between  the  States." 

In  the  so-called  Merger  case,  Northern  Securities  Co. 
v.  United  States,25  the  act  of  1890  was  held  applicable  to  a 
combination  of  stockholders  in  the  competing  interstate 
railway  companies,  the  aim,  or  at  least  the  effect  of  which 
was  to  prevent  or  render  possible  the  prevention  of  com- 
petition between  the  two  roads  by  transferring  their  stock 
to  a  single  holding  company,  organized  under  the  laws  of 
a  State,  which  holding  company  thereby  became  possessed 
of  a  controlling  interest  in  the  stock  of  each  of  the  railway 
companies. 

In  this  case  it  was  strenuously  urged  that  the  combina- 
tion or  agreement  represented  by  the  holding  company  was 
one  which,  in  itself,  had  no  direct  relation  to  interstate 
commerce,  the  company  being  an  investment  company 
and  not  itself  a  carrier  company;  and  the  question  thus 
reduced  itself  to  whether  the  United  States  had,  under  its 


24 193  U.  S.  38;  24  Sup.  Ct.  Rep.  307;  48  L.  ed.  608. 
25 193  U.  S.  197;  24  Sup.  Ct.  Rep.  436;  48  L.  ed.  679. 


284  PRINCIPLES  OF  THE  CONSTITUTIONAL 

commercial  power,  the  constitutional  authority  to  regu- 
late the  transference  and  holding  of  the  shares  of  stock 
of  state  corporations. 

To  this  argument  the  court  replied  that  the  real  question 
at  issue  was  not  as  to  the  power  of  the  United  States  to 
regulate  the  holding  of  stock  of  State  corporations,  but  as 
to  the  power  of  State  corporations  to  restrain  or  monopolize 
interstate  commerce.  It  was  admitted  that  contracts 
or  combinations  relating  to  the  holding  of  stock  of  inter- 
state carrier  companies  have  not,  generally  speaking,  a 
direct  relation  to  interstate  commerce,  and  therefore,  that, 
as  to  them,  the  doctrine  of  the  Knight  case  would  apply. 
But  in  the  present  case  the  court  found  that  the  Merger 
Company  was  not  a  bona  fide  investment  company,  but 
was,  in  its  very  inception  and  sole  design,  a  scheme  for 
controlling  interstate  commerce. 

The  so-called  Beef  Trust  Case,  Swift  &  Co.  v.  United 
States,26  decided  in  1905,  added  no  new  principle  to  the 
law  of  interstate  commerce.  The  act  of  1890  was  held 
to  have  been  violated  by  a  combination  of  independent 
meat  dealers  in  an  attempt  to  monopolize  commerce  in 
fresh  meat  among  the  States,  and  to  restrict  the  competi- 
tion of  their  respective  buyers  when  purchasing  stock  for 
them  in  the  stock  yards.  It  is  significant,  however,  that 
the  court  emphasized  that  the  unlawfulness  of  the  general 
scheme  was  sufficient  to  render  unlawful  the  constituent 
acts,  which  in  themselves  and  apart  from  their  place  in  the 
general  scheme,  might  not  have  been  in  violation  of  the 
Anti-Trust  Act.  "The  plan  may  make  the  parts  unlaw- 
ful." 

In  Loewe  v.  Lawler27  the  court  took  a  very  advanced 
ground  as  to  what  will  be  construed  to  be  an  interference 


26  196  U.  S.  375;  25  Sup.  Ct.  Rep.  276;  49  L.  ed.  518. 

27  208  U.  S.  274;  28  Sup.  Ct,  Rep.  301;  52  L.  ed.  488. 


LAW  OF  THE  UNITED  STATES  285 

with  interstate  commerce.  In  this  case  the  act  of  1890 
was  held  to  have  been  violated  by  a  combination  of  mem- 
bers of  a  labor  organization,  in  .the  nature  of  a  boycott, 
to  prevent  the  manufacture  of  hats  intended  for  trans- 
portation beyond  the  State,  and  to  prevent  their  vendees 
in  other  States  from  reselling  the  hats,  and  from  further 
negotiating  with  the  manufacturers  for  further  purchases. 
In  order  to  bring  this  combination  within  the  terms  of  the 
Federal  statute  the  court  again  emphasized  that  where  the 
general  purpose  and  effect  of  the  plan  is  to  restrain  inter- 
state- trade,  the  separate  acts,  though  in  themselves  acts 
within  a  State  and  beyond  Federal  cognizance,  become 
illegal  as  tested  by  the  Federal  law.28 

In  the  Standard  Oil  and  American  Tobacco  Co.  cases,29 
there  was  almost  no  further  discussion  by  the  court  of 


28  For  other  cases  construing  the  act  of  1890,  see  Shawnee  Com- 
press Co.  v.  Anderson,  209  U.  S.  423;  28  Sup.  Ct.  Rep.  572;  52  L.  ed. 
865;  Connolly  v.  Union  Sewer  Pipe  Co.,  184  U.  S.  540;  22  Sup.  Ct, 
Rep.  431;  46  L.  ed.  679;  Continental  Wall  Paper  Co.  v.  Voight,  212 
U.  S.  515;  29  Sup.  Ct.  Rep.  280;  53  L.  ed.  486;  American  Banana  Co. 
v.  United  Fruit  Co.,  213  U.  S.  347;  29  Sup.  Ct,  Rep.  511;  53  L.  ed. 
826.    As  to  the  constitutionality  of  the  "Elkins  Act"  of  1907  (32 
Stat.  at  L.  847),  prohibiting  rebates,  see  N.  Y.  Central  &  H.  R.  Ry. 
Co.  v.  United  States,  212  U.  S.  481;  29  Sup.  Ct.  Rep.  304,  53  L.  ed. 
613.    As  to  the  constitutionality  of  the  "Carmack  Amendment"  of 
June  29,  1906,  to  the  act  of  1887,  imposing  upon  an  interstate 
carrier  liability  to  the  holder  of  a  bill  of  lading  for  loss  or  injury  to 
freight  occurring  anywhere  en  route,  with  right  of  recovery  against 
the  connecting  carrier  actually  causing  the  loss  or  injury,  see  Atlantic 
Coast  Line  R.  R.  v.  Riverside  Mills,  219  U.  S.  186;  31  Sup.  Ct.  Rep. 
164;  55  L.  ed.  167.     For  an  excellent  account  of  the  Commerce 
Court  established  by  the  act  of  June,  1910,  see  the  article  by  J.  W. 
Bryan,  "The  Railroad  Bill  and  the  Court  of  Commerce"  hi  the 
American  Political  Science  Review,  Nov.,  1910. 

29  Standard  Oil  Co.  v.  United  States,  221  U.  S.  1;  31  Sup.  Ct. 
Rep.  502,  decided  May  22,  1911;  United  States  v.  American  Tobacco 
Co.,  22;  U.  S.  106,  31  Sup.  Ct.  Rep.  632,  decided  May  29,  1911. 


286  PRINCIPLES  OF  THE  CONSTITUTIONAL 

the  question  whether  the  acts  complained  of  constituted 
an  interference  with  interstate  commerce.  That  there  was 
such  an  interference  was  assumed  to  be  beyond  serious 
dispute.  With  reference  to  the  Knight  case  the  court 
simply  say:  "The  view  ....  which  the  argument  takes 
of  that  case,  and  the  arguments  based  upon  that  view, 
have  been  so  repeatedly  pressed  upon  this  court  in  con- 
nection with  the  interpretation  and  enforcement  of  the 
anti-trust  act,  and  have  been  as  necessarily,  and  expressly 
decided  to  be  unsound,  as  to  cause  the  contentions  to  be 
plainly  foreclosed  and  to 'require  no  express  notice"  (cit- 
ing cases).  The  chief  significance,  then,  of  these  cases, 
aside  from  'this  summary  disposal  of  the  Knight  case, 
is  one  of  statutory  construction,  that  is,  of  the  Anti-Trust 
Act  of  1890.  In  effect  the  court,  in  these  two  cases,  held 
that  though  the  act  is  still  to  be  interpreted  as  forbidding 
every  contract  or  combination  in  restraint  of  trade  be- 
tween the  States,  not  every  agreement  between  competit- 
ors which  affects  interstate  trade,  and,  in  a  measure, 
checks  competition  in  that  trade,  is  in  restraint  of  inter- 
state trade,  but  only  those  agreements  or  acts  are  to  be  so 
construed  which  unduly  or  unreasonably  affect  interstate 
trade;  and  that  any  direct  attempt  to  monopolize  such 
trade,  or  to  obtain  the  power  arbitrarily  to  control  prices 
or  competition  therein,  is  such  an  undue  interference  and 
therefore  within  the  prohibition  of  the  act.  What  shall 
be  held  to  constitute  a  restraint  of  interstate  commerce 
it  is  declared,  is  to  be  determined  by  the  intent  of  the  law 
as  revealed  by  a  study  of  legal  and  economic  conditions 
preceding  and  attending  the  enactment  of  the  Act  in  1890. 

The  Federal  control  of  corporations  under  the  commerce 

clause 

The  Federal  Government  has  the  undoubted  power  it- 
self to  own  and  operate,  or  to  incorporate  companies  for 


LAW  OF  THE  UNITED  STATES  287 

the  construction  and  operation  of  roads,  bridges,  and  other 
instrumentalities  of  interstate  commerce.30  This  author- 
ity is  derived  not  only  from  the  Commerce  Clause  but 
from  the  authority  of  the  Federal  Government  to  estab- 
lish post-offices  and  post-roads,  and  from  its  military 
powers.  And,  incidental  to  the  exercise  of  these  powers, 
the  right  of  eminent  domain  may  be  exercised  by  the 
Federal  Government  or  by  corporations  chartered  by  it, 
within  the  States  and  Territories.31 

In  Wilson  v.  Shaw32  the  authority  of  the  United  States 
to  construct  the  interoceanic  canal  across  the  territory 
ceded  by  the  Republic  of  Panama,  is  declared. 

It  has  been  argued  that  the  Federal  Government  has 
the  constitutional  power  to  charter  companies  not  only 
to  do  an  interstate  carrier  or  exporting  business,  but,  as 
incidental  thereto,  to  manufacture  and  produce  the  goods 
which  they  export  or  transport.  Some  support  for  the 
doctrine  has  been  claimed  from  the  cases  in  which  it  has 
been  held  that  the  National  Banks,  chartered  primarily  to 
serve  a  Federal  function,  may  also  be  authorized,  as  inci- 
dental thereto,  to  do  a  general  banking  business  within  the 
States.  But  it  is  by  no  means  sure  that  these  bank  cases 
will  be  held  to  furnish  this  support.  In  the  case  of  the  Na- 
tional Banks  it  will  be  remembered  that  it  was  held  that  it 
was  not  practicable  for  them  to  exist  as  banks  and  to  per- 
form the  Federal  functions  which  they  were  created  to 
perform,  unless,  at  the  same  time,  they  are  permitted  to  do 
a  general  banking  business,  As  to  interstate  carrier  or 
exporting  companies,  however,  it  would  seem  that  there 


30  Calif,  v.  Central  Pacific  Ry.  Co.,  127  U.  S.  1;  8  Sup.  Ct.  Rep, 
1073  •  82  L.  ed.  150;  Monongahela  Navigation  Co.  v.  United  States, 
148  U.  S.  312;  13  Sup.  Ct,  Rep.  622;  37  L.  ed.  463;  Luxton  v.  North 
Uivor  Bridge  Co.,  153  U.  S.  525;  14  Sup.  Ct.  Rep.  891;  38  L.  ed.  808,. 

31  Kohl  v.  United  States,  91  U.  S.  367;  23  L,  ed.  449. 
?2  204  U,  S,  24;  27  Sup.  Ct.  Rep.  233;  51  k,  ed,  351, 


288  PRINCIPLES  OF  THE  CONSTITUTIONAL 

is  not  the  same  necessity  that  they  should  be  permitted 
to  carry  on  a  manufacturing  business.  Indeed,  by  the 
Federal  Hepburn  Act  of  1906,  interstate  railways  are  ex- 
pressly forbidden  to  have  a  direct  or  indirect  interest  in 
the  commodities  which  they  transport. 

It  would  seem,  however,  that  federally  incorporated 
interstate  carrier  companies  may  be  authorized  to  carry 
on  also  an  intrastate  carrier  business.  Here  the  connec- 
tion between  the  two  would  seem  to  be  as  close  as  that 
between  the  general  banking  business  and  the  purely 
Federal  functions  of  the  National  Banks. 

The  denial  to  Congress  of  the  power  to  charter  compan- 
ies empowered  to  do  a  manufacturing  business  within 
the  States  does  not  necessarily  carry  with  it  the  denial  of  a 
power  to  require  of  individuals  or  of  state-chartered  com- 
panies a  Federal  permission  to  engage  in  interstate  com- 
merce whether  as  carriers  or  as  shippers  of  goods  across 
State  borders.  Certainly  this  is  so  if  the  right  to  engage 
in  interstate  commerce  or  to  make  use  of  interstate  com- 
mercial instrumentalities  be  held  to  be  a  Federal  right. 
The  lottery  case  of  Champion  v.  Ames  33  has  illustrated  the 
extent  of  this  Federal  power  to  exclude  commodities  from 
interstate  trade.  Applying  the  doctrines  of  this  case  it 
may  be  held  that  while  Congress  may  not  be  able  to  charter 
manufacturing  companies,  which  the  States  may  not  ex- 
clude from  their  borders,  it  may  refuse  to  individuals  or 
State-chartered  companies  the  right  to  ship  their  products 
across  State  lines,  except  upon  certain  conditions,  which 
conditions  may  be  so  stated  as  to  bring  the  companies  and 
the  individuals,  so  far  as  they  make  use  of  interstate  com- 
merce agencies,  within  a  rigorous  Federal  control.34 


33 188  U.  S.  321;  23  Sup.  Ct.  Rep.  321;  47  L.  ed.  492. 

•34C/.  Veazie  Bank  v.  Fenno,  8  Wall.  533;  19  L.  ed.  482;  United 
States  v.  Marigold,  9  How.  560;  13  L.  ed.  257;  United  States  v.  Joint 
Traffic  Assn.,  171  U.  S.  505;  19  Sup.  Ct.  Rep.  25;  43  L.  ed.  259. 


LAW  OF  THE  UNITED  STATES  289 

Federal  taxing  power  and  interstate  commerce 

A  Federal  tax  may  be  laid  upon  interstate  commerce, 
its  instrumentalities,  the  articles  carried,  or  the  privilege 
of  engaging  in  it,  either  as  a  revenue  measure  or  as  a  means 
of  regulation.  If  the  tax  should  be  laid  for  a  regulative 
purpose,  its  constitutionality  would  be  dependent  wholly 
upon  the  Commerce  Clause,  and,  not  being,  except  in 
form,  a  tax,  would  not  be  subject  to  the  express  limitations 
as  to  apportionment,  etc.,  imposed  by  the  Constitution 
upon  the  taxing  power  of  the  United  States.35 

A  genuine  tax  imposed  for  revenue  purposes,  if  assessed 
upon  the  commodities  of  interstate  commerce  or  upon 
the  instrumentalities  of  commerce  as  property,  would  be 
a  direct  tax  and  would  have  to  be  apportioned  among  the 
States  according  to  their  respective  populations.  That 
this  is  so  sufficiently  appears  from  the  doctrines  of  Pollock 
v.  Farmers'  L.  &  T.  Co.36 

If  the  tax  should  be  one  upon  the  privilege  of  engaging 
in,  or  carrying  on  interstate  commerce,  it  would  in  all 
probability  be  construed  to  be  constitutionally  an  indirect 
tax.37 

A  more  doubtful  point,  however,  is  whether  such  an 
excise  tax  upon  the  right  to  engage  in  interstate  commerce 
would  not  come  within  the  constitutional  provision  that 
"no  tax  or  duty  shall  be  laid  on  articles  exported  from  any 
State."  That  it  would  be  held  to  be  a  tax  on  exports  from 
a  State  would  seem  to  follow  from  the  reasoning  of  the 
court  in  Brown  v.  Maryland;38  but,  if  the  doctrine  of 

35  Veazie  Bank  v.  Fenno,  8  Wall.  533;  19  L.  ed.  482. 
36 158  U.  S.  601;  15  Sup.  Ct,  Rep.  912;  39  L.  ed.  1108. 

37  The  cases  that  would  probably  be  held  controlling  as  to  this, 
are,  Nicol  v.  Ames,  173  U.  S.  509;  19  Sup.  Ct.  Rep.  522;  43  L,  ed. 
786;  Spreckels  Sugar  Refining  Co.  v.  McClain,  192  U.  S.  397;  24 
Sup.  Ct.  Rep.  376;  48  L.  ed.  496;  Flint  v.  Stone  Tracy  Co.,  220 
U.  S.  107;  31  Sup.  Ct.  Rep.  342;  55  L.  ed.  389, 

38  12  Wh.  419;  6  L.  cd.  678, 

19 


290  PRINCIPLES  OF  THE  CONSTITUTIONAL 

Woodruff  v.  Parham39  be  followed,  it  will  be  held  that  the 
prohibition  of  the  Constitution  applied  only  to  exports 
from  a  State  to  foreign  countries. 

Federal  control  of  navigable  waters 

In  a  later  chapter  will  be  considered  the  Federal  powers, 
both  judicial  and  legislative,  which  flow  from  the  provision 
of  §  2,  Art.  Ill  of  the  Constitution,  which  provides  that  the 
Federal  Judicial  power  shall  extend  "to  all  cases  of  ad- 
miralty and  maritime  jurisdiction."  It  will  there  appear 
that,  under  this  grant  of  authority,  the  National  Govern- 
ment has  been  construed  to  have  a  general  authority 
over  all  acts  directly  connected  with  or  occurring  upon  the 
navigable  waters  of  the  United  States.  These  navigable 
waters  have  been  construed  to  be  all  waters,  whether  tidal 
or  not,  and  whether  located  wholly  within  a  single  State 
or  not,  which  are  navigable  in  fact,  or  are  susceptible  of 
being  so  used,  as  highways  over  which  trade  and  travel 
may  be  conducted.  Navigability  has  thus  been  accepted 
as  the  test  of  Federal  admiralty  jurisdiction.  It  is  thus 
apparent  that  the  Federal  authority  thus  obtained  is  a 
more  comprehensive  one  than  that  derived  from  the  Com- 
merce Clause. 

Congress  has  by  various  acts  established  regulations 
governing  the  use  of  the  "navigable  waters  of  the  United 
States,"  which  have  been  defined  to  be,  as  distinguished 
from  the  navigable  waters  of  the  States  (concerning  which 
Congress  has  not  seen  fit  to  legislate),  those  waters  which 
"form  in  their  ordinary  condition,  or  by  uniting  with  other 
waters,  a  continued  highway  over  which  commerce  is  or 
may  be  carried  on  with  other  States  or  foreign  countries 
in  the  customary  modes  in  which  such  commerce  is  con- 
ducted by  water.40 

39  8  Wall.  123;  19  L.  ed.  382. 

4°  The  Daniel  Ball,  10  Wall.  557;  19  L.  ed.  999, 


LAW  OF  THE  UNITED  STATES  291 

In  the  absence  of  conflicting  congressional  legislation,  the 
States  are  left  free  to  regulate  transportation  upon  the  nav- 
igable waters  within  their  respective  borders.  In  all  cases 
Congress  has,  of  course,  the  authority  to  supersede  the  reg- 
ulations of  the  States  which  are  considered  to  operate  as 
an  obstruction  to  navigation. 

Federal  control  of  foreign  commerce 

The  same  clause  which  gives  to  Congress  the  power  to 
regulate  commerce  among  the  States  extends  the  power 
to  commerce  with  foreign  nations.  It  has  been  declared 
that  "the  power  to  regulate  commerce  among  the  several 
States  is  granted  to  Congress  in  terms  as  absolute  as  is 
the  power  to  regulate  commerce  with  foreign  nations." 
This  is  true,  and  yet  the  control  which  the  United  States 
may  exercise  over  foreign  commerce  is  broader  than  that 
which  it  may  exercise  over  interstate  commerce  for  the 
reason  that  it  is  able  to  draw  additional  powers  from  Con- 
stitutional sources  other  than  the  Commerce  Clause.  Thus 
especially  from  the  exclusive  and  plenary  authority  over 
foreign  relations  granted  to  it,  the  Federal  Government  is 
able  to  control  the  admission  of  aliens,  to  provide  for  their 
deportation,  to  grant  special  commercial  privileges  by 
treaty,  and  to  lay  a  total  or  partial  embargo  upon  foreign 
commerce.  In  Buttfield  v.  Stranahan 42  the  court  also  sug- 
gest the  possibility  that  the  Federal  authority  over  inter- 
state commerce  may  be,  in  certain  directions,  limited  by 
the  reserved  rights  of  the  States,  which  limitations  would 
not  apply  to  foreign  commerce. 

By  Clause  6  of  §  9  of  the  Constitution  the  limitation  is 
laid  upon  the  power  granted  in  the  Commerce  Clause  that 
"no  preference  shall  be  given  by  any  regulation  of  com- 


41  Brown  v.  Houston,  114  U.  S.  622;  5  Sup.  Ct.  Rep.  1091;  29  L.  ed. 
257. 

42 192  U.  S.  470;  24  Sup.  Ct.  Rep.  349;  48  L.  ed,  525. 


292  PRINCIPLES  OF  THE  CONSTITUTIONAL 

merce  or  revenue  to  the  ports  of  one  State  over  those  of 
another;  nor  shall  vessels  bound  to,  or  from,  one  State, 
be  obliged  to  enter,  clear,  or  pay  duties  in  another." 

This  clause  has  received  little  judicial  construction. 
One  of  the  few  cases  in  which  the  meaning  of  the  clause 
has  been  considered  is  Pennsylvania  v.  W.  &  B.  Bridge 
Co.,43  in  which  it  is  declared  that  "what  is  forbidden  is 
not  discrimination  between  individual  ports  within  the 
same  or  different  States,  but  discrimination  between  the 
States." 

Commerce  with  the  Territories  and  with  the  District  of 
Columbia 

The  Commerce  Clause  contains  no  reference  to  trade 
between  the  States  and  the  Territories  or  the  District 
of  Columbia,  or  the  Territories  inter  se.  In  general 
however,  the  courts  have  treated  the  District  of  Colum- 
bia and  the  territories  as  " States"  within  the  meaning  of 
the  Clause.44 

Congress  having  exclusive  jurisdiction  within  and  over 
the  District  and  the  Territories,  there  of  course  cannot 
arise,  as  to  them,  the  objection  that  Federal  regulations 
extend  to  matters  that  are  of  domestic  concern. 

Commerce  with  Indians 

So  long  as  the  Indians  form  distinct  communities  oc- 
cupying clearly  defined  territories,  even  though  those 
territories  be  within  the  borders  of  the  States,  intercourse 
with  them  is  a  matter  subject  to  Federal  regulation,  and 
this  Federal  power  of  regulation  extends  to  the  prohibi- 
tion of  sales  to  Indians  within  a  State  and  beyond  the 
borders  of  the  Indian  Reservation.  The  Federal  control 


43 18  Wall.  421;  15  L.  ed.  435. 

44  Stoutenburgh  v.  Hennick,  129  U.  S.  141,  9  Sup.  Ct.  Rep.  256; 
.32  L.  ed.  637.    But  see  Michigan  Law  Review,  II,  468. 


LAW  OF  THE  UNITED  STATES  293 

of  commerce  with  the  Indians,  given  by  the  Commerce 
Clause,  is  thus  seen  to  be  supplemented  by  the  general 
jurisdiction  of  the  National  Government  over  Indians  as 
wards  of  the  Nation.45 


45  United  States  v.  Kagama,  118  U.  S.  375;  6  Sup.  Ct.  Rep.  1109; 
30  L.  ed.  228;  United  States  v.  Holliday,  3  Wall.  407;  18  L.  ed.  182. 


CHAPTER  XXXIV 

OTHER   POWERS   OF   CONGRESS 

Naturalization 

Clause  4  of  §  8  of  Art.  1.  of  the  Constitution  gives  to 
Congress  the  power  to  establish  "an  uniform  rule  of  na- 
turalization." 

This  power  has  already  been  considered  in  an  earlier 
chapter  dealing  with  citizenship  and  it  is  here  necessary 
only  to  add  that  the  power,  though  in  an  early  and  ill 
considered  case  held  to  be  one  that  may  be  concurrently 
exercised  by  the  States,  was  in  Chirac  v.  Chirac,1  decided 
in  1817,  declared  to  be  exclusively  in  Congress  and  this 
doctrine  has  not  since  been  questioned. 

Bankruptcy :  definition  of 

The  same  clause  which  gives  to  Congress  the  power  to 
establish  an  uniform  rule  of  naturalization,  authorizes 
that  body  to  "  establish  uniform  laws  on  the  subject  of 
bankruptcies  throughout  the  United  States." 

The  construction  which  has  been  given  to  this  clause 
furnishes  one  of  the  few  exceptions  to  the  general  rule 
that  the  technical  terms  of  the  Constitution  are  to  be 
given  the  meaning  which  they  had  at  the  time  the  Consti- 
tution was  adopted.  In  1789  "bankruptcy"  and  "in- 
solvency" had,  in  the  English  law,  different  and  distinct 
meanings.  Bankruptcy  applied  only  to  merchants  or 
traders  charged  with  having  committed  some  fraudulent 
or  quasi-fraudulent  act  upon  their  creditors,  who  there- 


1  2  Wh.  259;  4  L.  ed.  234. 
294 


LAW  OF  THE  UNITED  STATES  295 

Upon  might  institute  proceedings  to  have  their  debtor 
declared  a  bankrupt,  his  property  taken  and  distributed 
in  payment  of  his  debts,  and  he  himself  either  discharged 
from  further  liability  therefor,  or  imprisoned  as  the  court 
might  think  fit.  Insolvency,  upon  the  other  hand,  de- 
scribed the  status  of  a  debtor,  not  a  trader,  who,  in  order 
to  obtain  a  discharge  might  in  certain  cases  surrender, 
or  offer  to  surrender,  all  his  property  in  payment  of  his 
debts. 

In  this  country,  however,  from  the  beginning  Congress 
and  the  Supreme  Court  have  given  to  the  term  "  Bank- 
ruptcy" a  meaning  broad  enough  to  cover  " Insolvency" 
as  well.  Indeed  the  distinction  between  the  two  was  not 
generally  recognized  in  the  colonies  before  the  separation 
from  England. 

By  various  acts  Congress  has,  from  time  to  time,  en- 
acted laws  providing  for  both  voluntary  and  involuntary 
bankruptcy,  that  is  for  proceedings  instituted  by  the 
debtor  himself  or  in  invitum  by  his  creditors.  The  details 
of  this  legislation  need  not  here  be  given.  It  is  sufficient 
to  say  that  the  first  law  was  enacted  in  1800,  and  repealed 
in  1803;  the  second  law  in  1841  was  repealed  in  1843;  the 
third  in  1867,  and  after  being  several  times  amended, 
repealed  in  1878;  the  fourth  law,  now  in  force,  being 
passed  July  1,  1898. 

In  Sturges  v.  Crowninshield,2  affirmed  in  Ogden  v.  Saun- 
ders,3  the  court  held  that  the  power  to  establish  bank- 
ruptcy laws  is  not  exclusively  vested  in  Congress,  but  may 
be  exercised  by  the  States  in  the  absence  of  Federal  Legis- 
lation. 

State  bankruptcy  laws  and  the  obligation  of  contracts 
The  right  of  the  States,  in  the  absence  of  conflicting 

2  4  Wh.  122 ;  4  L.  ed.  529. 
3 12  Wh.  213;  6  L.  ed.  606. 


290  PRINCIPLES  OF  THE  CONSTITUTIONAL 

congressional  legislation,  to  enact  bankruptcy  laws  is 
limited  by  the  provision  of  the  Constitution  that  no  State 
shall  pass  any  law  impairing  the  obligation  of  contracts. 
Indeed,  if  we  are  to  accept  the  statement  of  the  court  in 
Hanover  v.  Moyses  4  this  prohibition  was  made  for  this 
express  purpose. 

In  Sturges  v.  Crowninshield  the  court  held  invalid  a 
State  law  which  discharged  the  debtor  from  a  contract 
entered  into  previous  to  its  passage. 

In  Ogden  v.  Saunders,  the  court  held  valid  a  State 
bankruptcy  law  which  discharged  the  debtor  and  his  future 
acquisitions  of  property  so  far  as  it  related  to  debts  con- 
tracted subsequent  to  the  passage  of  the  law.  The  law 
was,  thus,  in  effect,  read  into  each  contract  as  a  clause 
thereof. 

The  authority  of  the  States  to  deal  by  bankruptcy  or 
other  laws  with  contracts  entered  into  subsequent  to 
their  enactment  is  plenary.5 

State  laws  have  no  extraterritorial  force 

In  Ogden  v.  Saunders  was  laid  down  the  important 
principle  that  a  certificate  of  discharge  under  a  State  law 
cannot  be  pleaded  in  bar  of  an  action  brought  by  a  citizen 
of  another  State  in  the  courts  of  the  United  States,  or  of 
any  other  State  than  that  where  the  discharge  was  ob- 
tained. The  creditor  of  another  State  is,  however,  con- 
cluded by  the  discharge  in  bankruptcy  if  by  appearance 
or  otherwise  he  has  made  himself  a  party  to  the  original 
insolvency  proceedings. 

The  United  States  is,  of  course,  not  under  this  territorial 
limitation  in  the  exercise  of  its  bankruptcy  powers,  and, 
furthermore,  it  .is  not  limited  with  reference  to  the  impair- 

4 186  U.  S.  181;  22  Sup.  Ct.  Rep.  857;  46  L.  ed.  1113. 
5  Edwards  v.  Kearzey,  96  U.  S.  595;  24  L.  ed.  793;  Denny  v.  Ben- 
nett, 128  U.  S.  489;  9  Sup.  Ct.  Rep.  134;  32  L.  ed.  491. 


LAW  OF  THE  UNITED  STATES  297 

ment  of  the  obligation  of  contracts.  National  bankrupt 
laws  may,  therefore,  be  made  applicable  to  contracts  al- 
ready entered  into  at  the  time  of  their  passage.6 

It  is,  however,  required  of  national  bankrupt  laws  that 
they  shall  be  uniform.  The  uniformity  is  a  geographical 
one.  The  laws  must,  in  all  their  provisions,  be  equally 
applicable  to  all  of  the  States,  and  to  incorporated  terri- 
tories.7 

State  laws  suspended  but  not  annulled  by  Federal  bank- 
ruptcy laws:  Effect  of  the  law  of  1898 

The  enactment  of  a  national  bankrupt  law  does  not 
operate  to  annul  state  laws  on  the  same  subject,  but 
simply  to  suspend  their  operation  so  long  as  the  national 
regulation  is  in  force.  Upon  the  repeal  of  the  Federal 
law  the  State  laws  at  once  revive,  and  do  not  need  re- 
enactment.  So  also  a  State  law  passed  while  a  Federal 
bankruptcy  law  is  in  force  goes  at  once  into  force  with  the 
repeal  of  the  Federal  Statute.8 

The  precise  effect  of  the  enactment  of  a  Federal  bank- 
ruptcy law  in  suspending  the  operation  of  existing  State 
laws  is  not  definitely  determined  from  either  the  decisions 
of  the  State  or  Federal  courts.  That  a  State  law  covering 
the  same  ground  as  the  national  act,  even  though  its 
provisions  be  not  inconsistent  therewith,  is  suspended  is 
generally,  though  not  uniformly,  admitted.  If,  then,  it  is 
conceded  that  the  intention  of  Congress  was,  by  the  en- 
actment of  a  bankruptcy  law,  to  cover  the  entire  subject, 
all  State  laws  relating  to  bankruptcy  are  suspended  while 
the  national  law  remains  in  force.9 


6  Hanover  Bank  v.  Moyses,  186  U.  S.  181;  22  Sup.  Ct.  Rep.  857; 
46  L.  ed.  1113. 

7  Qucere  as  to  unincorporated  Territories. 

8  Butler  y.'Goreley,  146  U.  S.  303;  13  Sup.  Ct.  Rep.  84;  36  L.  ed. 
981. 

9  Tua  v.  Carriere,  117  U.  S.  201;  6  Sup.  Ct.  Rep.  565;  29  L.  ed.  855. 


298  PRINCIPLES  OF  THE  CONSTITUTIONAL 

Even  if  the  view  be  accepted  that  by  the  act  of  1898, 
the  general  subject  of  bankruptcy  was  fully  covered  there 
still  remains,  in  many  cases,  the  difficulty  of  determining 
when  State  laws  relating  to  general  assignments  for  the 
benefit  of  creditors,  receiverships  of  corporations,  etc., 
may  be  held  to  be  in  the  nature  of  bankruptcy  laws  and 
as  such  rendered  inoperative  during  the  existence  of  the 
Federal  law. 

Coinage 

Congress  is  given  power  "to  coin  money,  regulate  the 
value  thereof,  and  of  foreign  coin,  and  fix  the  standards 
of  weights  and  measures." 

The  authority  thus  given  has  been  freely  exercised  by 
Congress  but  this  legislation  has  given  rise  to  very  few 
constitutional  questions. 

It  is  to  be  observed  that  power  is  given  not  only  to  coin, 
but  to  provide  what  shall  be  the  legal  tender  value  of  the 
pieces  coined.  There  has  been  no  question  but  that  the 
States  possess  no  concurrent  jurisdiction.  The  power  is 
an  exclusively  Federal  one.10 

Weights  and  measures 

With  reference  to  standards  of  weights  and  measure- 
ments the  States  are  recognized  to  have  power  to  legislate 
in  the  absence  of  congressional  action. 

Counterfeiting 

Congress  is  expressly  given  the  power  "to  provide  for 
the  punishment  of  counterfeiting  the  securities  and  current 

See  the  excellent  article  of  Professor  Williston  in  Harvard  Law 
Review,  XXII,  547,  entitled  "The  Effect  of  a  National  Bankruptcy 
Law  upon  State  Laws." 

10  By  Art.  I,  §  10,  cl.  1  of  the  Constitution,  the  States  are  ex- 
pressly denied  the  power  to  coin  money. 


LAW  OF  THE  UNITED  STATES  299 

coin  of  the  United  States."  There  is  little  doubt,  however, 
that,  had  the  power  not  been  expressly  given,  it  would 
have  been  held  implied  in  the  power  given  to  coin.  The 
power  of  Congress  to  prohibit  and  to  provide  punishment 
for  the  counterfeiting  of  the  coins  and  securities  of  foreign 
countries  is  considered  in  United  States  v.  Arjona.11 

The  passing  of  counterfeit  coins  or  securities  is  an  offense 
distinct  from  that  of  coining  or  "uttering"  them,  but  the 
power  to  punish  the  former  is  implied  in  the  power  to 
forbid  the  latter. 

Under  its  powers  to  regulate  commerce  and  to  punish 
counterfeiting,  Congress  has  been  held  to  have  the  power 
to  provide  punishment  for  the  bringing  into  the  United 
States,  with  intent  to  pass  the  same,  false,  forged,  or 
counterfeit  coin,  as  well  as  for  the  passage  or  uttering  of 
the  same. 

In  Fox  v.  Ohio  12  it  was  held  that  the  grant  of  power  to 
the  United  States  to  punish  the  uttering  and  passing  of 
counterfeits  of  its  coins  did  not  deprive  the  States  of  the 
power  to  render  penal  and  to  punish  these  acts.  It  was 
pointed  out  by  the  court  that  the  same  act  might  thus 
constitute  as  to  its  character  and  consequences  an  offense 
against  both  the  State  and  the  Federal  governments. 
This  doctrine  was  approved  in  United  States  v.  Marigold.13 

Postal  service :  Federal  power 

The  Federal  control  of  the  postal  service  is  granted  in 
the  clause  of  Art.  I,  §  8,  which  provides  that  Congress 
shall  have  the  power  "to  establish  post-offices  and  post- 
roads." 

In  early  years  the  view  was  maintained  by  some  that 
by  this  grant  Congress  was  given  the  power  only  to  desig- 

11 120  U.  S.  479;  7  Sup.  Ct.  Rep.  628;  30  L.  ed.  728. 

12  Fox  v.  Ohio,  5  How.  410;  12  L.  ed.  213, 

13  9  How.  560;  13  L.  ed.  257. 


300  PRINCIPLES  OF  THE  CONSTITUTIONAL 

nate  the  routes  over  which  the  mails  should  be  carried, 
and  the  post-offices  where  they  should  be  received  and  dis- 
tributed, and  to  exercise  the  necessary  protection  in  rela- 
tion thereto,  and  that  it  did  not  provide  the  authority  to 
construct  and  operate  agencies  for  the  carrying  and  dis- 
tributing of  mails.  This  was  substantially  the  view  taken 
by  Monroe  in  the  paper  sent  to  Congress  in  connection 
with  his  veto,  in  1822,  of  the  Cumberland  Road  bill. 

In  considerable  measure  Congress  in  its  legislation  has 
kept  within  the  limits  of  the  powers  conceded  to  it  by 
Monroe,  but,  when  it  has  thought  it  wise,  it  has  not  hesi- 
tated to  overstep  them,  and  its  Constitutional  right  so 
to  do  has  for  years  been  conceded. 

In  California  v.  Central  Pacific  R.  R.  Co.,14  the  power 
of  Congress  to  construct,  or  to  authorize  individuals  to 
construct  railroads  across  the  States  and  Territories  was 
held  to  be  implied  not  only  in  the  power  given  to  Congress 
to  regulate  commerce,  but  in  its  authority  to  provide  for 
postal  facilities  and  military  exigencies. 

Exclusion  from  the  mails:  Freedom  of  press:  Searches  and 

seizures:  Ex  parte  Jackson 

In  Ex  parte  Jackson  15  was  questioned  the  constitutional 
power  of  Congress  to  exclude  lottery  tickets  from  the 
mails,  and  in  determining  this  the  court  found  it  necessary 
to  consider  the  general  extent  of  the  administrative  con- 
trol that  might  be  exercised  over  the  postal  services  and 
especially  the  relation  thereof  to  the  constitutionally 
guaranteed  immunity  of  the  people  against  unreasonable 
searches  and  seizures,  as  well  as  their  right  to  freedom  of 
the  press.  In  its  opinion  the  court  pointed  out  that  with- 
out Constitutional  objection  having  been  made,  the  power 


14 127  U.  S.  1;  8  Sup.  Ct.  Rep.  1073;  32  L.  ed.  1050. 
15  96  U.  S.  727;  24  L.  cd,  877, 


LAW  OF  THE  UNITED  STATES  301 

vested  in  Congress  "to  establish  post-offices  and  post- 
roads,"  had,  from  the  beginning,  been  construed  to  auth- 
orize not  only  the  designation  of  the  routes  over  which 
the  mails  should  be  carried,  the  location  of  the  offices 
wherein  the  mail  matter  should  be  received  and  dis- 
tributed, the  carriage  of  that  matter,  and  the  establishment 
of  regulations  providing  for  its  safe  and  speedy  transit  and 
prompt  delivery,  but  the  determination  of  what  matter 
should  be  carried,  its  classification,  its  weight  and  form, 
and  the  charges  to  be  made.  The  right  to  designate  what 
shall  be  carried,  it  is  declared,  carries  with  it  the  right  to 
determine  what  shall  be  excluded. 

However,  the  difficulty  in  this  case  arose  not  so  much 
in  establishing  the  powers  of  Congress  to  exclude  ob- 
jectional  matter  from  the  mails,  as  in  upholding  the 
power  to  provide  measures  for  enforcing  effectively  the 
rules  of  exclusion  which  might  be  legislatively  declared. 
For,  obviously,  the  presence  in  the  mails  of  the  proscribed 
matter  could  be  determined  only  by  examination  of  the- 
mail  matter  by  the  proper  administrative  officer,  and 
the  granting  of  such  a  right  of  examination,  it  was  claimed, 
was  in  violation  of  constitutionally  guaranteed  rights  of 
the  people.  As  to  this  the  court  declared : 

"Whilst  regulations  excluding  matter  from  the  mails 
cannot  be  enforced  in  a  way  which  will  require  or  permit 
an  examination  into  letters,  or  sealed  packages  subject 
to  letter  postage,  without  warrant  issued  upon  oath  or 
affirmation,  in  the  search  for  prohibited  matter,  they  may 
be  enforced  upon  a  competent  evidence  of  their  violation 
obtained  in  other  ways;  as  from  the  parties  receiving  t.he 
letter  and  packages,  or  from  agents  depositing  them  in  the 
post-office,  or  others  cognizant  of  the  facts.  As  to  the 
objectionable  printed  matter  which  is  open  to  examination, 
the  regulation  may  be  enforced  in  a  similar  way,  by  the 
imposition  of  penalties  for  their  violation  through  the 


302  PRINCIPLES  OF  THE  CONSTITUTIONAL 

courts,  and,  in  some  cases,  by  the  direct  action  of  the 
officers  of  the  postal  service.  In  many  instances,  those 
officers  can  act  upon  their  own  inspection,  and,  from  the 
nature  of  the  case,  must  act  without  other  proof;  as  where 
the  postage  is  not  prepaid,  or  where  there  is  an  excess  of 
weight  over  the  amount  prescribed,  or  where  the  object  is 
exposed,  and  shows  unmistakably  that  it  is  prohibited, 
as  in  the  case  of  an  obscene  picture  or  print.  In  such 
cases  no  difficulty  arises  and  no  principle  is  violated  in 
excluding  the  prohibited  articles  or  refusing  to  forward 
them.  The  evidence  respecting  them  is  seen  by  every- 
one, and  is  in  its  nature  conclusive.  In  excluding  various 
articles  from  the  mails,  the  object  of  Congress  has  not 
been  to  interfere  with  the  freedom  of  the  press,  or  with 
any  other  rights  of  the  people;  but  to  refuse  its  facilities 
for  the  distribution  of  matter  deemed  injurious  to  the 
public  morals." 

In  Ex  parte  Rapier  16  it  was  again  urged  that  Congress 
was  without  the  constitutional  power  to  forbid  the  use 
of  the  mails  to  lottery  tickets,  circulars,  etc.,  but  this 
time  upon  the  ground  that  Congress  was  without  the 
power  to  declare  the  lottery  itself  a  criminal  enterprise. 
To  this  the  court  replied : "  It  is  not  necessary  that  Congress 
should  have  the  power  to  deal  with  crime  or  immorality 
within  the  States  in  order  to  maintain  that  it  possesses 
the  power  to  forbid  the  use  of  the  mails  in  aid  of  the 
perpetration  of  crime  and  immorality.  We  cannot  regard 
the  right  to  operate  a  lottery  as  a  fundamental  right  in- 
fringed by  the  legislation  in  question;  nor  are  we  able  to 
see  that  Congress  may  be  held,  in  its  enactment,  to  have 
abridged  the  freedom  of  the  press." 

It  will  be  observed  that  the  cases  Ex  parte  Jackson  and 
In  re  Rapier  go  no  further  than  to  sustain  the  power  of 


16 143  U.  S.  110;  12  Sup.  Ct.  Rep.  374;  36  L,  ed.  93. 


LAW  OF  THE  UNITED  STATES  303 

the  United  States  to  exclude  from  the  mails  matter  which 
it  deems  objectionable.  They  do  not  decide  that  Congress 
may  permit  the  sending  into  a  State  and  the  delivery 
therein  of  matter  considered  seditious,  immoral,  or  other- 
wise objectionable  by  the  State.  This  point  has  never 
been  passed  upon  by  the  Supreme  Court.  It  has,  how- 
ever, been  debated  in  Congress  and  there  is  an  opinion 
of  the  United  States  Attorney-General  Gushing  17  that 
Congress  has  not  this  power.  This  opinion  declares  that 
while  the  Federal  Government  has  full  control,  free  from 
State  interference,  to  regulate  the  transmission  of  the 
mails  up  to  the  time  of  their  receipt  by  the  postmaster  of 
the  office  to  which  they  are  directed,  the  States  may,  in 
the  exercise  of  their  acknowledged  police  power,  prevent 
their  citizens  from  receiving  incendiary  or  other  matter 
which  they  deem  objectionable. 

From  the  opinion  rendered  in  the  Ex  parte  Jackson 
and  other  cases,  it  would  appear  that  the  States  are  with- 
out the  power  to  conduct  postal  operations  over  post- 
roads  in  competition  or  conflict  with  the  United  States, 
but  that  they  may  permit,  or  themselves  provide  for,  the 
carrying  of  letters  or  merchandise  in  other  ways,  as,  for 
instance,  by  express  companies,  and  this  too,  with  ref- 
erence to  material  excluded  by  Congress  from  the  mails 
as  immoral,  fraudulent,  or  otherwise  objectionable.  How- 
ever, the  distribution  of  matter  treasonable  to  the  United 
States  or  inciting  resistance  to  its  laws  may  of  course  not 
be  authorized,  nor  may  interstate  commerce  be  regulated. 

In  a  later  chapter  18  dealing  with  administrative  powers 
will  be  discussed  the  extent  of  the  discretionary  power 
that  may  be  granted  the  Postmaster-General  and  his 
agents  in  excluding  matter  from  the  mails  under  so-called 
"  fraud  orders." 

17  8  Op.  Atty.  Gen.  489. 

18  Chapter  LIV. 


304  PKINCIPLES  OF  THE  CONSTITUTIONAL 

Protection  of  the  mails:  In  re  Debs 

In  Re  Debs  19  was  presented  the  question  whether,  for 
the  protection  of  the  mails,  as  well  as  of  interstate  com- 
merce, the  Federal  Government  may,  by  the  use  of  ju- 
dicial restraining  orders  or  the  employment  of  its  armed 
forces,  prevent  interferences,  or  whether  it  is  obliged  to 
wait  until  there  has  been  such  interference,  and  then 
punish  the  guilty  ones  in  its  courts.  The  court  held  that 
the  former  as  well  as  the  latter  means  are  open  to  it. 

Patents 

Congress  is  given  the  power  "to  promote  the  progress 
of  useful  arts,  by  securing  for  limited  times  to  authors 
and  inventors  the  exclusive  right  to  their  respective  writ- 
ings and  discoveries." 

The  granting  by  the  United  States  of  a  patent  right 
does  not  give  to  the  patentee  the  authority  to  exercise  it 
in  a  State  in  violation  of  the  police  laws  of  that  State,20 
or  of  the  United  States.21 

Copyrights  —Trade-marks 

In  the  Trade-Mark  Cases  22  it  was  held  that  the  ordinary 
trade-mark  has  no  necessary  relation  to  invention  or  dis- 
covery, and,  therefore,  that  its  use  may  not  be  regulated  by 
Congress  under  the  power  to  provide  for  the  issuance  of 
patents  and  copyrights.  Lacking  this  authority  the  court 
held  that  the  Federal  Government  has  power  to  legislate 
with  reference  to  trade-marks  only  in  so  far  as  their  use 


19 158  U.  S.  564;  15  Sup.  Ct.  Rep.  900;  39  L.  ed.  1092. 

20  Patterson  v.  Kentucky,  97  U.  S.  501;  24  L.  ed.  1115;  Webber  v. 
Virginia,  103  U.  S.  334;  26  L.  ed.  565;  Allen  v.  Riley,  203  U.  S.  347; 
27  Sup.  Ct.  Rep.  95;  51  L.  ed.  216. 

21  United   States  v.  Standard   Sanitary   Mfg.   Co.    ("Bath  Tub- 
Trust"),  U.  S.  Cir.  Ct.,  decided  Oct.  13,  1911, 

22 100  U.  S.  82;  25  L.  ed.  550. 


LAW  OF  THE  UNITED  STATES  305 

in  interstate  trade  is  concerned.    The  law  in  question  in 
the  case  not  being  thus  limited  was  held  void. 

Piracies,  etc. 

The  power  of  the  United  States  to  define  and  punish 
piracies  and  other  crimes  committed  on  the  high  seas,  and 
offenses  against  the  law  of  nations,  may  be  supported 
upon  three  constitutional  grants, — one  express  and  two 
implied.  In  Art.  I,  §  8,  Clause  10,  it  is  expressly  given.  It 
may  be  implied  from  the  Federal  admiralty  and  maritime 
jurisdiction,  and  from  the  general  control  granted  to  the 
Federal  Government  in  all  that  concerns  foreign  affairs. 
The  implied  power  to  define  and  punish  crimes  under  the 
maritime  jurisdiction  is  broader,  territorially,  than  that 
given  in  Art.  I,  §  8,  Clause  10,  inasmuch  as  admiralty 
jurisdiction  has  been  construed  to  extend  not  only  over 
the  high  seas,  but  over  all  public  navigable  waters. 

The  authority  given  to  Congress  to  define  and  punish 
all  offenses  against  the  law  of  nations  would  seem  to  be 
broad  enough  to  authorize  the  prohibition  and  punish- 
ment of  acts  which,  though  committed  within  the  terri- 
torial limits  of  the  several  States,  may  give  rise  to  inter- 
national responsibilities  upon  the  part  of  the  United 
States.  It  would  also  seem  that  this  authority  may  be 
implied  from  the  general  fact  that  to  the  Federal  Govern- 
ment is  given  the  exclusive  control  of  foreign  relations, 
and  that  to  it  alone  foreign  States  look  for  redress  of  any 
injuries  which  they  may  conceive  themselves  to  have 
suffered.  Where  the  responsibility  is  imposed,  the  right 
to  prevent  its  accruing  may  properly  be  implied.23 

By  the  clause  under  discussion  Congress  is  given  the 
power  not  simply  to  provide  for  the  punishment  of  piracy 


23  United  States  v.  Arjona,  120  U.  S.  479;  7  Sup.  Ct.  Rep.  628;  30 
L.  ed.  728. 
20 


306  PRINCIPLES  OF  THE  CONSTITUTIONAL 

as  defined  by  the  law  of  nations,  but  itself  to  define  what 
shall  constitute  the  offense  and  punish  it  as  such.  Thus, 
for  example,  the  slave  trade,  though  not  declared  by  inter- 
national law  to  be  piracy,  has  by  Congress  been  declared 
so  to  be. 

Declaration  of  war 

War,  that  is,  a  contest  the  parties  to  which  have  been 
recognized  as  belligerents,  is  a  status  that  gives  rise  to 
numerous  legal  consequences  to  the  parties  involved,  to 
neutral  powers,  to  the  actual  combatants,  and  to  non- 
combatants.  In  all  countries  it  is,  therefore,  a  matter  of 
great  importance  what  authority  shall  have  the  consti- 
tutional power  of  creating  such  a  status,  and  of  deter- 
mining the  date  of  its  beginning. 

That,  under  our  Constitution,  the  United  States  may 
begin  war  against  a  foreign  country  only  by  a  declaration 
issued  by  Congress  has  never  been  disputed,  the  Constitu- 
tion expressly  providing  that  Congress  shall  have  the  power 
to  declare  war.  That  a  foreign  nation,  or  insurrectionary 
body  o'f  citizens,  may  by  invasion  of  the  United  States 
or  by  other  acts  bring  about  a  condition  of  affairs  which 
will  warrant  the  President,  in  declaring  in  advance  of 
congressionable  legislation  that  a  state  of  war  exists,  was 
asserted  by  the  Supreme  Court  in  the  Prize  Cases.24 

The  powers  of  Congress  with  reference  to  the  prosecu- 
tion of  a  war,  and  some  of  the  legal  incidents  to  a  state 
of  war  are  discussed  in  later  chapters. 

Letters  of  marque  and  reprisal  and  captures  on  land  and 

water 

Congress  is  authorized  by  the  Constitution  to  grant 
letters  of  marque  and  reprisal  and  to  make  rules  concern- 
ing captures  on  land  and  water. 

24  2  Black.  635;  17  L.  ed.  459. 


LAW  OF  THE  UNITED  STATES  307 

It  has  been  held  that  letters  of  marque  may  be  granted 
to  privateers  to  make  captures  within  the  territorial  waters 
of  the  United  States  as  well  as  upon  the  high  seas.25 

Similarly  Congress  may  make  rules  concerning  captures 
within  the  United  States  as  well  as  upon  the  high  seas 
or  upon  foreign  soil.26 

Other  military  powers 

The  express  powers  given  to  Congress  with  reference  to 
raising  and  supporting  armies,  the  organizing,  arming, 
disciplining,  and  calling  forth  the  militia  to  execute  the 
laws  of  the  Union,  and,  generally,  the  powers  of  Congress 
with  reference  to  the  prosecution  of  a  war,  are  considered 
elsewhere. 


25  The  Experiment,  8  Wh.  261;  5  L.  ed.  612. 

28  Brown  t;.  United  States,  8  Cr.  110;  3  L.  ed.  504. 


CHAPTER  XXXV 

PROHIBITIONS   ON   CONGRESS 

Absolute  and  qualified  prohibitions 

In  the  chapters  which  have  gone  before  the  powers  of 
Congress  have  been  considered.  In  connection  therewith 
have  been  discussed  the  express  and  implied  limitations 
which  restrain  Congress  in  the  exercise  of  those  powers. 

In  the  present  chapter  we  shall  have  to  deal  with  the 
general  limitations  laid  by  the  Constitution  upon  Congress, 
either  by  way  of  the  absolute  denial  to  Congress  of  a 
power,  or  by  way  of  express  provision  that  certain  powers 
shall  be  exercised  only  under  certain  specified  circum- 
stances. 

It  would  seem  that  certain  of  these  limitations  thus 
expressly  imposed  operate  as  an  absolute  denial  to  Con- 
gress of  a  legislative  power  with  reference  to  the  subjects 
specified,  without  regard  to  time  or  place.  Others  of  these 
limitations,  as  was  held  in  the  Insular  Cases,  serve  to 
restrain  the  legislative  powers  of  Congress  only  when 
dealing  with  the  States  and  incorporated  territories.1 

Importation  of  slaves 

The  provision  of  the  Constitution  that  "the  migration 
or  importation  of  such  persons  as  any  of  the  States  now 
existing  shall  think  proper  to  admit  shall  not  be  pro- 
hibited by  the  Congress  prior  to  the  year  1808,"  has,  of 
course,  become  obsolete. 

1  Downes  v.  Bidwell,  182  U.  S.  244;  21  Sup.  Ct.  Rep.  770;  45  L.  ed. 
1088. 

308 


LAW  OF  THE  UNITED  STATES  309 

With  respect  to  the  immigration  of  persons  into  the 
United  States,  the  authority  of  the  United  States  is  ex- 
clusive as  regards  its  commerce  power,  or  its  control  of 
foreign  relations.  The  States  may  not  levy  a  tax  on  per- 
sons entering  the  United  States,  such  a  tax  not  being 
relieved  from  the  constitutional  objection  that  it  is  an 
interference  with  commerce  by  describing  it  in  its  title 
as  in  aid  of  an  inspection  law  which  authorizes  immi- 
grants to  be  inspected  with  reference  to  their  being  crimi- 
nals, paupers,  lunatics,  or  persons  liable  to  become  a 
public  charge.  Inspection  laws,  the  Supreme  Court  has 
declared,  have  reference  to  property  and  not  to  persons.2 

Suspension  of  habeas  corpus 

The  provision  that  the  writ  of  habeas  corpus  shall  not 
be  suspended,  unless  when  in  cases  of  rebellion  or  invasion 
the  public  safety  may  require  it,  is  considered  in  a  later 
chapter  dealing  with  Martial  Law.3 

Bills  of  attainder 

Clause  3  of  §  IX  of  Art.  I  provides  that  "No  bill  of  at- 
tainder ....  shall  be  passed." 

This  clause  has  given  rise  to  an  inconsiderable  number 
of  judicial  determinations.  The  principal  case  in  definition 
of  a  bill  of  attainder  is  that  of  Cummings  v.  Missouri,4  in 
which  the  court  held  unconstitutional  the  test  oath  of 
loyalty  imposed  by  the  Constitution  of  Missouri  as  a  con- 
dition precedent  to  holding  any  State  office  of  trust  or 
profit,  or  practicing  the  profession  of  the  law  or  ministry. 
The  court  declared:  "A  bill  of  attainder  is  a  legislative  act, 
which  inflicts  punishment  without  a  judicial  trial.  If  the 
punishment  be  less  than  death,  the  act  is  termed  a  bill  of 

2  New  York  v.  Compagnie  Generate  Transatlantique,  107  U.  S. 
59;  2  Sup.  Ct.  Rep.  87;  27  L.  ed.  383. 

3  Chapter  LII. 

4  4  Wall.  277;  18  L.  ed.  356. 


310  PRINCIPLES  OF  THE  CONSTITUTIONAL 

pains  and  penalties.  Within  the  meaning  of  the  Consti- 
tution, bills  of  attainder  include  bills  of  pains  and  penalties. 
In  these  cases  the  legislative  body  in  addition  to  its  legiti- 
mate functions,  exercises  the  powers  and  office  of  a  judge, 
it  assumes,  in  the  language  of  the  text-books,  judicial 
magistracy;  it  pronounces  upon  the  guilt  of  the  party, 
without  any  of  the  forms  or  safeguards  of  a  trial;  it  deter- 
mines the  sufficiency  of  the  proofs  produced,  whether  con- 
formable to  the  rules  of  evidence  or  otherwise;  and  it  fixes 
the  degree  of  punishment  in  accordance  with  its  own  notion 
of  the  enormity  of  the  offense." 

The  opinion  then  goes  on  to  declare  that  the  questioned 
clauses  of  the  Missouri  Constitution  are  also  invalid  as 
ex  post  facto  legislation,  being  aimed  at  past  rather  than 
future  acts. 

In  Ex  parte  Garland,5  decided  at  the  same  time  as  the 
Cummings  case,  the  court  held  void,  as  a  bill  of  attainder, 
the  act  of  Congress  of  January  24,  1865,  prescribing  as 
a  qualification  for  admission  as  an  attorney  before  the 
Federal  courts  an  oath  that  the  deponent  had  never  vol- 
untarily borne  arms  against  the  United  States,  given  aid 
to  its  enemies,  etc. 

A  statute  making  the  non-payment  of  taxes  evidence  of 
disloyalty  during  the  Civil  War  and  providing  for  the  for- 
feiture of  lands  without  a  judicial  hearing  was  held  to  be  a 
bill  of  attainder,6  as  was  a  law  excluding  from  the  United 
States  Chinese  who  are  citizens  of  the  United  States.7 

Ex  post  facto  legislation 

The  same  clause  of  the  Constitution  which  prohibits 
bills  of  attainder  declares  that  no  ex  post  facto  legislation 
shall  be  valid. 


5  4  Wall.  333;  18  L.  ed.  366. 

6  Martin  v.  Snowden,  18  Gratt.  100. 

7  In  re  Yang  Sing  Hoe,  13  Saw.  486. 


LAW  OF  THE  UNITED  STATES  „  311 

In  the  early  case  of  Calder  v.  Bull 8  the  prohibition  was 
declared  to  relate  only  to  criminal  and  not  to  civil  pro- 
ceedings, and,  as  thus  limited,  ex  post  facto  laws  were  de- 
clared to  be  "every  law  that  makes  an  action  done  before 
the  passing  of  a  law,  and  which  was  innocent  when  done, 
criminal ;  and  punishes  such  action.  Every  law  that  aggra- 
vates a  crime,  or  makes  it  greater  than  it  was,  when  com- 
mitted. Every  law  that  changes  the  punishment,  and 
inflicts  a  greater  punishment,  than  the  law  annexed  to  the 
crime,  when  committed.  Every  law  that  alters  the  legal 
rules  of  evidence,  and  requires  less,  or  different  testimony, 
than  the  law  required  at  the  time  of  the  commission  of  the 
offense,  in  order  to  convict  the  offender." 

By  later  decisions  this  definition  of  ex  post  facto  legisla- 
tion has  been  broadened  so  as  to  include  all  laws  which  in 
any  way  operate  to  the  detriment  of  one  accused  of  a 
crime  committed  prior  to  the  enactment  of  such  laws.9 

Appropriations 

It  is  provided  that  "no  money  shall  be  drawn  from  the 
treasury  but  in  consequence  of  appropriations  made  by 
law." 

This  restriction,  it  is  apparent,  operates  rather  upon  the 
officials  of  the  Treasury  Department  than  upon  Congress. 
The  legislative  body  is  left  free  to  authorize  such  expendi- 
tures as  it  may  see  fit,  and  to  direct  the  payment  to  be 
made  by  the  Secretary  of  the  Treasury.  This  direction 
having  been  given  by  law,  no  discretionary  power  is  left 
with  the  Treasury  Department  to  determine  whether  the 
payment  is  a  proper  one.10 


8  3  Ball.  386;  1  L.  ed.  648. 

9  Thompson  v.  Utah,  170  U.  S.  343;  18  Sup.  Ct.  Rep.  620;  42  L. 
ed.  1061.    In  this  case  the  earlier  cases  are  carefully  reviewed. 

10  United  States  v.  Price,  116  U.  S.  43;  6  Sup.  Ct.  Rep.  235;  29  L. 
ed.  541. 


)>12  PRINCIPLES  OF  THE  CONSTITUTIONAL 

Congress  may,  as  has  been  earlier  pointed  out,  appropri- 
ate sums  of  money  for  private  purposes;  for  the  construc- 
tion and  maintenance  of  works  which  the  United  States 
could  not  constitutionally  itself  construct  or  operate;  and 
recognize  and  pay  claims  of  merely  an  equitable  or  moral 
nature.11 

That  money  once  covered  into  the  United  States  Treas- 
ury may  not,  by  a  judicial  process,  be  recovered  therefrom 
without  the  sanction  of  an  act  of  Congress,  is  further  dis- 
cussed under  the  title  "  Suability  of  the  United  States."12 

Jury  trial 

By  Art.  Ill,  §  II,  Clause  3,  it  is  provided  that  "The  trial 
of  all  crimes,  except  in  cases  of  impeachment,  shall  be  by 
jury,  and  such  trial  shall  be  held  in  the  State  where  the 
said  crimes  shall  have  been  committed;  but  when  not 
committed  in  any  State,  the  trial  shall  be  at  such  a 
place  or  places  as  the  Congress  may  by  law  have  di- 
rected." 

By  the  Sixth  Amendment,  this  requirement  of  a  trial 
by  jury  is  repeated  and  the  additional  condition  imposed 
that  the  trial  of  persons  accused  of  crime  shall  be  speedy 
and  public,  the  jury  an  impartial  one,  selected  from  the 
State  and  district  wherein  the  crime  shall  have  been  com- 
mitted, which  district  shall  have  been  previously  ascer- 
tained by  law,  and  that  the  accused  shall  be  informed  of 
the  nature  and  cause  of  the  accusation,  be  confronted  with 
the  witnesses  against  him,  have  compulsory  process  for 
obtaining  witnesses  in  his  favor,  and  have  the  assistance 
of  counsel  for  his  defense. 

The  relation  between  this  Amendment,  and  the  third 


11  United  States  v.  Realty  Co.,  163  U.  S.  427;  16  Sup.  Ct.  Rep. 
1120;  41  L.  ed.  215. 

12  Chapter  XLV. 


LAW  OF  THE  UNITED  STATES  313 

clause  of  §  II  of  Art.  Ill  is,  as  stated  in  Callan  v.  Wilson,13 
that  in  the  latter  are  enumerated,  ex  abundanti  cautela,  the 
rights  to  which,  according  to  settled  rules  of  common  law, 
the  accused  is  entitled. 

Offenses  committed  outside  the  jurisdiction  of  a  State 
are  not  local,  but  may  be  tried  at  such  places  as  may  be 
designated  by  Congress. 

In  Capital  Traction  Co.  v.  Hof,14  "trial  by  jury"  is  de- 
clared to  be  "a  trial  by  a  jury  of  twelve  men  in  the  presence 
and  under  the  superintendence  of  a  judge  empowered  to 
instruct  them  on  the  law  and  to  advise  them  on  the  facts, 
and  (except  on  acquittal  of  a  criminal  charge)  to  set  aside 
their  verdict,  if,  in  his  opinion,  it  is  against  the  law  or  the 
evidence."  Unanimity  in  the  verdict  is  essential,  as  are 
twelve  jurors.15 

Courts  and  actions  in  which  jury  not  required 

The  right  of  trial  by  jury  provided  for  in  the  Constitu- 
tion applies  only  in  the  Federal  courts,  and  in  them  it 
applies  only  to  those  cases  in  which,  by  common  practice 
at  the  time  the  Constitution  was  adopted,  it  was  employed 
in  the  colonies  and  in  England.  Thus  it  does  not  apply 
to  equity  causes,  to  cases  in  admiralty  or  to  military  courts, 
nor  where  the  special  prerogative  rights  of  court  are  in- 
volved, as,  for  example,  in  proceedings  for  disbarment  or 
for  contempt.16 

Furthermore,  it  has  been  generally  recognized  by  courts, 
Federal  as  well  as  State,  that  the  guarantee  of  the  right 
to  a  trial  by  jury  does  not  apply  to  the  petty  offenses, 


13 127  U.  S.  540;  8  Sup.  Ct.  Rep.  1301;  32  L.  ed.  223.    See  also 
Story,  Commentaries,  §  1791. 

14 174  U.  S.  1;  19  Sup.  Ct.  Rep.  580;  43  L.  ed.  873. 

15  Springville  v.  Thomas,  166  U.  S.  707;  17  Sup.  Ct.  Rep.  717;  41 
L.  ed.  1172. 

16  In  re  Debs,  158  U.  S.  564;  15  Sup.  Ct.  Rep.  900;  39  L.  ed.  1092. 


314  PRINCIPLES  OF  THE  CONSTITUTIONAL 

which,  at  the  time  the  Constitution  was  adopted,  it  was 
generally  recognized  might  be  more  summarily  dealt  with. 
The  enjoyment  of  the  right  is  not,  however,  limited  to 
felonies.17 

Infamous  crimes 

The  provision  of  the  Fifth  Amendment  that  no  one  shall 
be  held  to  trial  for  a  criminal  offense  unless  on  a  present- 
ment or  an  indictment  of  a  grand  jury,  is  especially  limited 
to  capital  or  other  infamous  crimes.  It  would  seem  that 
there  is  no  hard  and  fast  definition,  in  American  law  at 
least,  of  an  "infamous  crime,"  each  case  having  thus  to  be 
decided  on  its  merits.18 

The  practical  construction  which  the  cases  have  put 
upon  the  constitutional  provision  with  reference  to  indict- 
ments has  been  that  there  must  be  an  indictment  in  every 
case  in  which  the  imprisonment  may  be  for  more  than  a 
year,  inasmuch  as  by  §  5541  of  the  Revised  Statutes  it  is 
provided  that  whenever  a  person  is  sentenced  to  more 
than  one  year's  imprisonment  he  may  be  required  to  serve 
the  sentence  in  a  penitentiary.  By  the  provision  of  §  335 
of  the  act  of  March  4,  1909,  revising,  amending  and  codify- 
ing the  penal  laws  of  the  United  States,  it  is  declared  that 
"all  offenses  which  may  be  punished  by  death,  or  imprison- 
ment for  a  term  exceeding  one  year,  shall  be  deemed  fel- 
onies. All  other  offenses  shall  be  deemed  misdemeanors." 

Waiver  of  constitutional  guaranties 

The  law  governing  the  waiver  by  the  accused  of  his  con- 
stitutional right  to  a  trial  by  jury  in  criminal  actions,  or 
to  a  trial  by  less  than  twelve  jurors,  and,  indeed,  the  waiver 
of  any  constitutional  guaranty,  is  not  in  a  clearly  deter- 


17  Callan  v.  Wilson,  127  U.  S.  540;  8  Sup.  Ct.  Rep.  1301;  32  L.  ed. 
223. 

18  Ex  parte  Wilson,  114  U.  S.  417;  5  Sup.  Ct.  Rep.  935;  29  L.  ed.  89. 


LAW  OF  THE  UNITED  STATES  315 

mined  condition.  In  cases  arising  under  State  constitu- 
tions, inharmonious  doctrines  have  been  declared.  In 
some  jurisdictions  the  position  has  been  taken  that  the 
guarantees  are  intended  merely  for  the  benefit  of  the  ac- 
cused and  may,  therefore,  be  waived.  In  other  States  the 
courts  have  held  that  the  guaranty  of  jury  trial  in  criminal 
cases  is  one  in  which  the  State  also  has  an  interest,  and 
which  for  that  reason  may  not  be  waived.  In  some 
courts,  a  third  view  is  taken  that  the  jury  is  essential  to 
give  the  court  jurisdiction,  and  that  while  in  case  of  a  plea 
of  guilty,  the  court  may  at  once  pronounce  judgment,  be- 
cause there  are  no  facts  to  be  determined,  where  the  plea 
is  not  guilty,  an  issue  is  raised  which  only  a  jury  is  compe- 
tent to  decide.19 

In  the  United  States  Supreme  Court  it  has  been  held 
in  Schick  v.  United  States20  that  jury  trial  may  be  waived 
in  the  trial  of  minor  offenses. 

The  right  of  the  accused  to  waive  jury  trial  in  cases  of 
felony  has  never  come  before  the  Supreme  Court;  but  in 
Lewis  v.  United  States21  that  court  held  that,  in  felonies, 
the  presence  of  the  accused  could  not  be  waived  either  by 
himself  or  by  counsel.  The  record  must  show,  affirma- 
tively, the  presence  of  the  prisoner  in  court  during  the 
trial.  It  would  seem  that,  in  this  case  at  least,  the  Su- 
preme Court  held  that  a  right  guaranteed  by  the  Amend- 
ments, as  distinguished  from  those  in  the  body  of  the  Con- 
stitution, might  not  be  waived. 

In  the  majority  opinion  in  Hawaii  v.  Mankichi22  the 
rather  surprising  statement  is  made  that  grand  and  petit 
juries  in  criminal  proceedings  "are  not  fundamental  in 
their  nature,  but  concern  merely  a  method  of  procedure." 

19  See  note  in  Columbia  Law  Review,  VIII,  577. 
20 195  U.  S.  65;  24  Sup.  Ct.  Rep.  826;  49  L.  ed.  99. 
21146  U.  S.  370;  13  Sup.  Ct.  Rep.  136;  36  L.  ed.  1011. 
22 190  U.  S.  197;  23  Sup.  Ct.  Rep.  787;  47  L.  ed.  1016. 


316  PRINCIPLES  OF  THE  CONSTITUTIONAL 

Speedy  trial 

The  Sixth  Amendment  secures  to  the  accused  a  speedy 
as  well  as  a  public  trial. 

This  provision  has  received  very  little  discussion  in  the 
Federal  courts,  and  so  far  as  the  author  is  aware,  no  case 
in  which  its  violation  has  been  asserted  has  reached  the 
Supreme  Court. 

Public  trial 

The  Constitution  expressly  provides  that  criminal  trials 
shall  be  publicly  conducted,  and,  indeed,  it  would  seem 
that  publicity  has  been  a  common-law  incident  of  trials 
for  crime.  Many  of  the  State  constitutions  also  expressly 
provide  that  proceedings  shall  be  public.  In  numerous 
cases,  however,  it  has  been  held  by  the  State  courts  that 
this  does  not  prevent  the  more  or  less  complete  exclusion 
of  spectators  where  public  morals  have  seemed  to  require 
it,  and  where  no  prejudice  to  the  accused  is  thereby  oc- 
casioned. The  question  has  not  been  passed  upon  by  the 
Federal  Supreme  Court. 

Double  jeopardy 

It  is  provided  by  a  clause  of  the  Fifth  Amendment  that 
no  person  shall  be  subject  for  the  same  offense  to  be  twice 
put  in  jeopardy  of  life  or  limb. 

Cases  may  occur  in  which  the  same  act  may  render  the 
actor  guilty  of  two  distinct  offenses;  as,  for  example,  the 
passing  of  counterfeit  coin  of  the  United  States,  which  may 
be  both  an  offense  against  the  United  States,  and,  as  a 
fraud  on  its  citizens,  an  offense  against  the  State.  In  such 
cases  the  accused  cannot  plead  the  trial  and  acquittal,  or 
the  conviction  and  punishment,  for  one  offense  in  bar  to  a 
conviction  for  the  other.23 


23  Fox  v.  Ohio,  5  How.  410;  12  L.  ed.  213;  United  States  v.  Man- 


LAW  OF  THE  UNITED  STATES  317 

From  this  class  of  acts  which  constitute  two  or  more 
distinct  offenses,  are  to  be  distinguished  those  acts  which 
are  punishable  by  the  tribunals  of  two  or  more  countries, 
or  by  two  or  more  tribunals  of  the  same  country.  Here 
the  offense  is  a  simple  one,  but  cognizable  in  two  juris- 
dictions. In  such  case  an  acquittal  or  punishment  in  one 
may  be  pleaded  in  bar  to  a  prosecution  in  another  court 
based  upon  the  same  act.  Thus,  in  Grafton  v.  United 
States24  it  was  held  that  one  acquitted  by  a  military  court 
of  competent  jurisdiction  could  not  be  tried  a  second  time 
in  a  civil  court  for  the  same  offense. 

This  doctrine  holds  even  though  the  punishment  which 
may  be  inflicted  by  the  court  is  different  from  or  greater 
than  that  which  may  be  imposed  by  the  other;  or  even  if 
the  indictment  in  the  one  court  charge  a  different  crime 
from  that  stated  in  the  other. 

What  constitutes  " jeopardy"  is,  in  accordance  with  the 
general  principle  of  constitutional  construction,  to  be  de- 
termined by  the  usage  of  the  word  and  the  custom  of  the 
common  law  at  the  time  the  Constitution  was  adopted. 
By  the  common  law  not  only  was  a  second  punishment  for 
the  same  offense  prohibited  but  a  second  trial  forbidden 
whether  or  not  the  accused  had  suffered  punishment,  or 
had  been  acquitted  or  convicted.25 

It  is  not  necessary,  in  order  that  prior  jeopardy  may  be 
pleaded  in  bar,  that  there  should  have  been  a  former  trial 
and  verdict  by  a  jury.  This  is  not  the  rule  uniformly 
stated,  but  as  declared  in  Kepner  v.  United  States,26  "the 
weight  of  authority,  as  well  as  decisions  of  this  court,  have 
sanctioned  the  rule  that  a  person  has  been  in  jeopardy 


gold,  9  How.  560;  13  L.  ed.  257;  Moore  v.  Illinois,  14  How.  13;  14 
L.  ed.  306. 

24  206  U.  S.  333;  27  Sup.  Ct.  Rep.  749;  51  L,  ed.  1084. 

25  Ex  parte  Lange,  18  Wall.  163;  21  L.  ed.  872. 

26 195  U.  S.  100;  24  Sup.  Ct.  Rep.  797;  49  L.  ed.  114. 


318  PRINCIPLES  OF  THE  CONSTITUTIONAL 

when  he  is  regularly  charged  with  a  crime  before  a  tribunal 
properly  organized  and  competent  to  try  him;  certainly 
so  after  acquittal." 

Where,  upon  a  former  trial,  the  jury  has  reported  disa- 
greement, it  appearing  reasonably  certain  that  an  agree- 
ment cannot  be  obtained,  and  the  jury  has  been  discharged 
by  the  court,  a  plea  of  former  jeopardy  will  not  be  held 
good.27 

Jeopardy  and  the  right  of  appeal 

It  is  established  that  in  criminal  cases  the  State  has  no 
right  of  appeal  where  the  accused  may  fairly  be  said  to  have 
been  placed  in  jeopardy.  This,  the  doctrine  of  the  com- 
mon law,  has  been  repeatedly  accepted  by  the  United 
States  Supreme  Court.  A  verdict  or  a  judgment  in  a  trial 
court  in  favor  of  the  accused  is,  therefore,  as  to  him,  final 
and  conclusive.  But  acquittal  before  a  court  without  jur- 
isdiction is  absolutely  void  and,  therefore,  no  bar  to  a 
subsequent  indictment  and  trial  before  a  court  having 
jurisdiction.28 

Where,  upon  conviction,  the  defendant  has  taken  an 
appeal,  and  a  new  trial  has  been  ordered,  he  may  be  found 
guilty  of  an  offense  of  a  higher  degree  than  that  originally 
found  against  him.  Thus  a  verdict  of  manslaughter  hav- 
ing been  found,  and  appeal  taken,  and  a  new  trial  awarded, 
a  verdict  of  murder  may  be  returned.29 

Self-incrimination — Immunity  from,  not  a  requirement   of 

due  process  of  law 

By  the  Fifth  Amendment  it  is  provided:  "Nor  shall  any 
person  be  compelled,  in  any  criminal  case,  to  be  a  witness 


27  United  States  v.  Perez,  9  Wh.  579;  6  L.  ed.  165. 

2*  United  States  v.  Ball,  163  U.  S.  662;  16  Sup.  Ct.  Rep.  1192;  41 
L.  ed.  300. 

29  Trono  v.  United  States,  199  U.  S.  521;  26  Sup.  Ct.  Rep.  121;  50 
L.  ed.  292. 


LAW  OF  THE  UNITED  STATES  319 

against  himself."  The  guaranty  thus  furnished  is  one 
independent  of  the  guaranty  of  "due  process  of  law"  and 
is  thus  one  which,  so  far  as  the  Federal  Constitution  is 
concerned,  is  not  secured  to  the  individual  in  the  State 
courts.30 

If  the 'answer  will  tend  merely  to  disgrace  but  not  to 
incriminate  the  witness,  the  privilege  does  not  apply.  If, 
however,  the  answer  is  one  which  can  have  no  bearing  on 
the  case  except  to  impair  the  credibility  of  the  witness, 
he  may  refuse  to  answer.31 

The  immunity  which  is  provided  has  for  its  object  the 
protection  of  the  individual  against  criminal  prosecution 
based  upon  evidence  which  has  been  compulsorily  ob- 
tained from  him.  Thus  the  provision  is  no  bar  to  the 
use  in  a  subsequent  prosecution  of  evidence  that  has  been 
voluntarily  given  by  the  accused;  nor  does  it  prevent  the 
courts  from  compelling  testimony  with  reference  to  acts 
no  longer  punishable,  or  where,  by  statute,  subsequent 
use  of  the  evidence  so  obtained  in  criminal  actions  has  been 
forbidden.  Thus  also  the  immunity  does  not  relate  to 
evidence  the  tendency  of  which  is  merely  to  discredit  the 
moral  character  of  the  witness.32 

In  Hale  v.  Henkel33  the  court  declare  the  broad  doctrine 
that  the  line  is  drawn  at  testimony  that  may  expose  the 
witness  to  criminal  prosecution.  "If  the  testimony  relate 
to  criminal  acts  long  since  past,  and  against  the  prosecu- 
tion of  which  the  statute  of  limitations  has  run,  or  for 
which  he  has  already  received  a  pardon,  or  is  guaranteed 
an  immunity,  the  amendment  does  not  apply." 


30  Twining  v.  New  Jersey,  211  U.  S.  78;  29  Sup.  Ct.  Rep.  14;  53 
L.  ed.  97. 

31  Brown  v.  Walker,  161  U.  S.  591;  16  Sup.  Ct.  Rep.  644;  40  L.  ed, 
819. 

3?  The  State  courts  are  in  conflict  as  to  this. 

"3  201  U.  S,  43;  26  Sup.  Ct,  Rep.  370;  50  L.  ed.  652, 


320  PRINCIPLES  OF  THE  CONSTITUTIONAL 

If  the  witness  waives  his  privilege,  and  discloses  his 
criminal  connections,  he  may  not  stop,  but  must  make  a 
full  disclosure  of  the  facts  regarding  which  he  is  interro- 
gated.34 

Where  the  right  to  compel  testimony  is  based  upon  a 
statute  granting  immunity  from  subsequent  prosecution, 
the  immunity  granted  must  be  complete.  Absolute  pro- 
tection against  later  criminal  actions  for  the  offense  to 
which  the  testimony  relates  must  be  provided.35 

The  immunity  of  the  individual  from  compulsory  self- 
incrimination  includes  the  right  to  refuse  to  produce  pri- 
vate books  and  papers  which  will  have,  or  will  tend  to 
have,  this  effect.36  But  it  does  not  permit  him,  as  an 
officer  of  a  corporation,  to  refuse  to  produce  its  books  and 
papers  when  the  corporation  is  charged  with  a  violation 
of  a  statute  by  the  State  of  its  creation  or  of  the  State  in 
which  it  is  doing  business,  or  of  an  act  of  Congress.37 

Unreasonable  searches  and  seizures 

The  question  as  to  the  right  of  the  government  to  com- 
pel the  production  of  books  and  papers  is  closely  connected 
with  the  provision  of  the  Fourth  Amendment  with  refer- 
ence to  unreasonable  searches  and  seizures.  This  pro- 
vision has  received  comparatively  little  direct  interpreta- 
tion and  application  at  the  hands  of  the  Supreme  Court. 
In  Ex  parte  Jackson38  it  was,  however,  held  that  it  applies 


34  Brown  v.  Walker,  161  U.  S.  591;  16  Sup.  Ct.  Rep.  644;  40  L.  ed. 
819. 

15  Councilman  v.  Hitchcock,  142  U.  S.  547;  12  Sup.  Ct.  Rep.  195; 
35  L.  ed.  1110. 

36  Boyd  v.  United  States,  116  U.  S.  616;  6  Sup.  Ct.  Rep.  524;  29 
L.  ed.  746. 

37  Hale  v.  Henkel,  201  U.  S.  43;  26  Sup.  Ct.  Rep.  370;  50  L.  ed. 
652. 

38  96  U.  S.  727;  24  L.  ed.  877.    See  also,  generally,  Boyd  v.  United 
States,  116  U.  S.  616;  6  Sup.  Ct.  Rep.  524;  29  L.  ed.  746. 


LAW  OF  THE  UNITED  STATES  321 

to  sealed  matter  in  the  mails.     Corporations  come  within 
its  protection.39 

Cruel  and  unusual  punishments 

The  provision  of  the  Eighth  Amendment  that  "excessive 
bail  shall  not  be  required,  nor  excessive  fines  imposed,  nor 
cruel  and  unusual  punishments  inflicted"  has  given  rise 
to  few  adjudications  in  the  Supreme  Court. 

The  prohibitions  are  not  included  within  "due  process 
of  law,"  and  are  not,  therefore,  made  applicable  by  the 
Fourteenth  Amendment  to  the  States.40 

The  fact  that  the  method  of  administering  the  death 
penalty,  for  example,  by  electrocution,  is  new,  does  not 
bring  it  within  the  constitutional  prohibition,  unless  it 
also  inflicts  what  amounts  to  lingering  torture.41 

In  Weems  v.  United  States,42  is  given  the  most  careful 
examination  that  the  Eighth  Amendment  has  received. 
In  this  case  the  very  important  position  is  substantially 
taken  by  the  court  that  a  punishment  not  cruel  and  un- 
usual in  kind  may  become  such  by  its  severity  in  amount 
or  degree — the  judgment  as  to  this  in  last  instance  necessa- 
rily devolving  upon  the  court. 

Treason 

The  power  of  Congress  with  reference  to  both  the  defin- 
ition and  punishment  of  treason  is  limited  by  §  III  of 
Art.  Ill  of  the  Constitution.  The  three  clauses  of  this 
section  provide  as  follows: 

"Treason  against  the  United  States  shall  consist  in 


39  Hale  v.  Henkel,  201  U.  S.  43;  26  Sup.  Ct.  Rep.  370;  50  L.  ed. 
652. 

40  Ex  parte  Kemmler,  136  U.  S.  436;  10  Sup.  Ct.  Rep.  930;  34  L. 
ed.  519. 

41  Idem. 

42  217  U.  S.  349;  30  Sup.  Ct.  Rep.  544;  54  L.  ed.  793. 

21 


322  PRINCIPLES  OF  THE  CONSTITUTIONAL 

levying  war  against  them,  in  adhering  to  their  enemies, 
giving  them  aid  and  comfort." 

"No  person  shall  be  convicted  of  treason,  unless  on  the 
testimony  of  two  witnesses  to  the  same  overt  act,  or  on 
confession  in  open  court." 

"The  Congress  shall  have  power  to  declare  the  punish- 
ment of  treason;  but  no  attainder  of  treason  shall  work 
corruption  of  blood,  or  forfeiture,  except  during  the  life 
of  the  person  attainted." 

The  purpose  of  these  provisions  is  to  exclude  the  possi- 
bility of  the  Federal  Government,  through  either  its  judi- 
cial or  legislative  branches,  following  the  precedents  of 
English  law  and  practice,  and  declaring  a  great  variety  of 
acts  to  constitute  treason  and  punishable  as  such. 

Treason  is  a  breach  of  allegiance.  This  allegiance  may 
be  one  of  full  citizenship,  or  one  based  upon  the  presence 
of  an  alien,  and  the  commission  of  the  treasonable  act, 
within  the  territorial  limits  of  the  United  States.  In  an 
earlier  chapter  it  has  been  pointed  out  that  an  alien  within 
the  territorial  limits  of  a  State,  whether  domiciled  there 
or  not,  owes  for  the  time  being  a  qualified  allegiance  to 
that  State.  He  enjoys  the  protection  of  its  laws,  and  may 
be  guilty  of  treason  if  he  wages  war  against  or  gives  com- 
fort or  aid  to  the  enemies  of  that  sovereignty.43 

The  distinction  between  "high"  and  "petit"  treason  is 
not  known  to  American  constitutional  law.  Or  rather, 
under  our  law,  petit  treason  no  longer  exists.  It  is  now 
simply  murder. 

Misprision  of  treason  is  defined  and  its  punishment  pro- 
vided for  by  §  5333  of  the  Revised  Statutes.  The  con- 
stitutionality of  this  provision  was  considered  and  not 
questioned  in  United  States  v.  Wiltberger.44 

43  Carlisle  v.  United  States,  16  Wall.  147;  21  L.  ed.  426;  Radich  v. 
Hutchins,  95  U.  S.  210;  24  L.  ed.  409. 

44  5  Wh.  76;  5  L.  ed.  37. 


LAW  OF  THE  UNITED  STATES  323 

• 

By  the  definition  of  the  Constitution  treason  to  the 
United  States  may  be  charged  only  in  cases  where  the 
accused  has  levied  war  against  the  United  States,  adhered 
to  its  enemies,  or  given  them  aid  and  comfort;  and,  for 
conviction,  there  must  have  been  an  overt  act. 

The  distinction  between  a  mere  riot,  or  resistance  to  the 
execution  of  a  law,  and  treason  is  not  always  easy  to  draw, 
but  in  general  the  authorities  hold  that  resistance  to  pub- 
lic authority,  in  order  to  constitute  a  levying  of  war  and, 
therefore,  treason,  must  amount  to  an  effort  directly  to 
overthrow  the  government,  or  to  prevent  a  law  from  being 
executed  not  simply  in  a  particular  instance,  but  generally. 

Thus  in  United  States  v.  Mitchell45  it  was  held  by  a  Fed- 
eral court  that  an  insurrection  of  armed  men,  the  object 
of  which  was  to  suppress  the  excise  offices  and  to  prevent 
by  force  and  intimidation  the  execution  of  an  act  of  Con- 
gress, was  a  levying  of  war,  and,  as  such,  treason.  Upon 
the  other  hand,  it  was  held  in  United  States  v.  Hoxie  that  if 
the  resistance  offered  to  the  execution  of  the  law  had  no 
public  purpose  in  view,  treason  was  not  committed,  how- 
ever great  the  degree  of  force  employed. 

Treason  against  a  State  of  the  Union 

The  punishment  of  the  crime  of  treason  against  the 
United  States  is  placed  exclusively  within  the  control  of 
the  Federal  authorities.  Treason  against  an  individual 
State  of  the  Union,  however,  is  punishable  by  the  author- 
ities of  the  State,  which  authorities  have,  subject  to  the 
general  limitations  placed  upon  them  by  the  Federal  Con- 
stitution with  reference  to  due  process  of  law,  ex  post  facto 


45  2  Ball.  348;  1  L.  ed.  410.  See  Ex  parte  Bollman,  4  Cr.  75;  2  L. 
ed.  554,  for  a  careful  consideration  of  what  constitutes  war.  In  this 
case  it  is  held  war  must  be  actually  levied  if  treason  is  to  be  found. 
Mere  enlistment  for  the  purpose  of  carrying  on  war  against  the 
United  States  is  not  enough. 


324  PRINCIPLES  OF  THE  CONSTITUTIONAL 

• 

legislation,  etc.,  the  power  to  determine  what  acts  shall 
be  held  to  constitute  treason  against  the  State. 

Offenses,   other  than  treason,   against  the   existence  and 

operation  of  the  Federal  Government 
The  Federal  Government,  though  restrained  by  the 
Constitution  with  reference  to  the  definition  of  treason, 
has  the  general  power  to  define  and  punish  as  it  sees  fit 
all  acts  against  its  existence  or  undisturbed  operation. 
Thus  it  has  by  statute  defined  and  provided  punishment 
for  misprision  of  treason,  inciting  or  engaging  in  rebellion 
or  insurrection,  criminal  correspondence  with  foreign  gov- 
ernments, seditious  conspiracy,  recruiting  soldiers  or 
sailors  to  serve  against  the  United  States,  enlistment  to 
serve  against  the  United  States,  and  generally,  acts  which 
interfere  with  the  effective  operations  of  the  government. 

Jury  trial  in  civil  suits 

By  the  Seventh  Amendment  it  is  provided  that  "in 
suits  at  common  law,  where  the  value  in  controversy  shall 
exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be 
preserved,  and  no  fact  tried  by  a  jury  shall  be  otherwise 
re-examined  in  any  court  of  the  United  States,  than  ac- 
cording to  the  rules  of  common  law." 

This  provision,  it  has  been  determined  by  the  Insular 
Cases,  does  not  apply  ex  proprio  vigore  to  the  unincorpo- 
rated territories. 

Trial  by  jury,  as  used  in  this  provision,  refers  to  "a  jury 
of  twelve  men,  in  the  presence  of  and  under  the  superin- 
tendence of  a  judge  empowered  to  instruct  them  in  the 
law  and  to  advise  them  on  the  facts,  and  to  set  aside  their 
verdict  if,  in  his  opinion,  it  is  against  the  law  and  the  evi- 
dence." The  "rules  of  common  law,"  refer,  of  course,  to 
the  common  law  of  England,  which  permits  a  new  trial, 
granted  by  the  trial  court  or  by  an  appellate  court  for 
errors  in  law  committed  on  the  first  trial. 


LAW  OF  THE  UNITED  STATES  325 

In  Capital  Traction  Co.  v.  Hof46  it  was  held  that  the 
right  to  jury  is  preserved,  when  an  appeal,  on  giving  bond, 
is  allowed  from  a  judgment  of  a  justice  of  the  peace  to  a 
court  of  record,  where  trial  is  had  by  jury.  The  constitu- 
tional provision,  it  is  pointed  out,  does  not  prescribe  at 
what  stage  of  an  action  a  trial  by  jury  must,  if  demanded, 
be  had,  or  what  conditions  may  be  imposed  upon  the  de- 
mand of  such  a  trial,  consistently  with  preserving  the 
right  to  it. 

The  right  to  a  jury  trial  in  civil  cases,  whatever  the  value 
in  controversy,  may  be  waived. 

Religious  freedom 

The  provision  of  the  First  Amendment  that  "Congress 
shall  make  no  law  respecting  an  establishme'nt  of  religion 
or  prohibiting  the  free  exercise  thereof,"  has  given  rise  to 
comparatively  little  litigation  in  the  Federal  courts. 

In  Reynolds  v.  United  States47  the  meaning  of  the  pro- 
hibition is  carefully  considered  and  the  conclusion,  una- 
voidable from  a  practical  viewpoint,  reached  that  the  pro- 
hibition does  not  prevent  Congress  from  penalizing  the 
commission  of  acts  which,  though  justified  by  the  tenets 
of  a  religious  sect,  are  socially  or  politically  disturbing,  or 
are  generally  prohibited  by  the  moral  sense  of  civilized 
communities.  Thus,  in  this  case,  it  was  held  that  poly- 
gamy might  be  declared  illegal  and  criminal,  though  de- 
clared proper  and  even  meritorious  by  the  Mormon  Re- 
ligion. 

Under  provisions  of  State  constitutions  prohibiting  the 
creation  of  State  religious  establishments,  the  appropria- 
tion of  money  for  sectarian  purposes,  and  in  general  the 
infringement  of  religious  freedom  and  equality,  many 

46 174  i;.  S.  1;  19  Sup.  Ct.  Rep.  580;  43  L.  ed.  873. 
47  98  U.  S.  145;  25  L.  ed.  244.    See  also  Davis  v.  Beason,  133  U.  S. 
333;  10  Sup.  Ct,  Rep.  299;  33  L.  ed.  637. 


326  PRINCIPLES  OF  THE  CONSTITUTIONAL 

eases  have  arisen  in  which  American  doctrines  of  Church 
and  State  have  been  discussed.  A  consideration  of  these 
cases  will  not  be  appropriate  in  this  treatise,  but  it  may 
be  said  that  a  peculiarly  valuable  examination  of  the  doc- 
trines governing  the  'attitude  of  the  courts  in  dealing  with 
property  claimed  by  two  or  more  contesting  religious 
bodies,  is  that  contained  in  the  opinion  of  the  Supreme 
Court  in  Watson  v.  Jones.48 

Freedom  of  speech  and  press 

The  prohibition  laid  upon  Congress  by  the  First  Amend- 
ment that  it  shall  make  no  law  "abridging  the  freedom  of 
speech,  or  of  the  press"  has  given  rise  to  very  few  pro- 
nouncements by  the  Supreme  Court,  and  in  no  instance,, 
indeed,  has  the  constitutionality  of  an  act  of  Congress 
been  seriously  questioned  upon  this  ground  before  that 
tribunal. 

In  United  States  v.  Williams49  the  provision  of  the  Im- 
migration Act  of  March  3,  1903,  for  the  exclusion  of  aliens 
holding  anarchistic  beliefs  was  indeed  questioned'  on  the 
ground  that  freedom  of  speech  and  press  was  infringed,, 
but  the  court  dismissed  the  point  with  the  observation 
that  while  it  is  true  that  if  an  alien  is  not  permitted  to 
enter  this  country,  or,  having  entered  contrary  to  law,  is 
expelled  therefrom,  he  is  cut  off  from  speaking  or  publish- 
ing in  this  country,  yet  the  right  freely  to  speak  or  publish 
is  not  infringed,  for  the  one  claiming  the  right  "does  not 
become  one  of  the  people  to  whom  these  things  are  se- 
cured by  our  Constitution  by  an  attempt  to  enter,  for- 
bidden by  law."  The  question  thus  became  simply  one 
of  the  right  to  exclude.  As  to  this  the  court  had  no  doubt 
in  the  premises  of  the  power  of  Congress. 


48 13  Wall.  679;  20  L.  ed.  666. 

49 104  U.  S.  279;  24  Sup.  Ct.  Rep.  719;  48  L.  ed,  979. 


LAW  OF  THE  UNITED  STATES  327 

In  Ex  parte™  Jackson  the  court  after  holding  that  sealed 
matter  in  the  mails  may  not  be  opened  and  examined,  ex- 
cept upon  a  proper  search  warrant,  go  on  to  observe  that 
as  to  printed  unsealed  matter,  their  transportation  in  the 
mails  may  not  be  so  interfered  with  as  to  violate  the  free- 
dom of  the  press,  because  unfettered  circulation  of  printed 
matter  is  as  essential  to  the  freedom  of  the  press  as  is  the 
liberty  of  printing.  Therefore,  it  is  declared,  if  printed 
matter  be  excluded  from  the  mails  its  transportation  in 
other  ways  may  not  be  forbidden  by  Congress. 

And  in  Ex  parte  Rapier51  the  court  say  with  reference 
to  the  exclusion  of  lottery  tickets,  and  advertisements 
thereof,  from  the  mails:  "The  circulation  of  newspapers 
is  not  prohibited,  but  the  government  declines  to  become 
an  agent  in  the  circulation  of  printed  matter  which  it  re- 
gards as  injurious  to  the  people.  The  freedom  of  communi- 
cations is  not  abridged  within  the  intent  and  meaning  of 
the  constitutional  provision  unless  Congress  is  absolutely 
destitute  of  any  discretion  as  to  what  shall  or  shall  not  be 
carried  in  the  mails,  and  compelled  arbitrarily  to  assist 
in  the  dissemination  of  matter  condemned  by  its  judgment, 
through  the  government  agencies  which  it  controls." 

The  main  purpose  of  the  constitutional  provisions  of  the 
First  Amendment  has  been  declared  to  be  "to  prevent  all 
such  previous  restraints  upon  publications  as  have  been 
practiced  by  other  governments,  and  they  do  not  prevent 
the  subsequent  punishment  of  such  as  may  be  deemed  con- 
trary to  the  public  welfare."52  In  the  case  in  which  this 
doctrine  is  declared,  the  court  held  unfounded  the  claim 
of  a  right  under  the  First  Amendment  to  prove  the  truth 
of  statements  contained  in  certain  publications  which  had 

5096U.  S.  727;  24  L.  ed.  877. 

51 143  U.  S.  110;  12  Sup.  Ct.  Rep.  374;  36  L.  ed.  93. 
52  Patterson  v.  Colorado,  205  U.  S.  454;  27  Sup.  Ct.  Rep.  556;  51 
L.  ed.  879. 


328  PRINCIPLES  OF  THE  CONSTITUTIONAL 

by  the  lower  court  been  held  to  constitute  contempt  of  the 
court. 

It  would  thus  appear  that  the  prohibition  of  the  First 
Amendment  relative  to  the  abridgement  of  freedom  of 
press  and  speech  not  only  leaves  to  the  Federal  courts  the 
authority  to  grant  relief  to  persons  libeled  or  slandered, 
and  to  punish  for  contempt  the  publication  or  utterance 
of  statements  reflecting  upon  its  own  dignity  or  calculated 
to  interfere  with  the  proper  and  efficient  administration 
of  justice  and  the  execution  of  its  writs,  but  that  it  pre- 
serves, or  at  least  does  not  restrict  the  power  of  Congress 
to  declare  criminal  and  provide  punishment  for  the  pub- 
lication or  open  advocation  of  doctrines  or  practices  cal- 
culated to  destroy  or  to  interfere  with  the  exercise  of  its 
constitutional  powers. 

Thus  it  would  seem  beyond  question  that  Congress  may 
define  and  punish  seditious  libel,  provided  the  prohibi- 
tion extends  to  acts  which  clearly  tend  to  sedition. 
The  Sedition  Act  of  1798,  never  came  before  the  Supreme 
Court,  but  was  upheld  as  constitutional  by  three  Federal 
judges;  and  the  argument  by  those  criticising  it,  rather 
was  that  the  act  was  too  broad,  than  that  seditious  libel, 
properly  defined,  might  not  be  punished. 

The  right  peaceably  to  assemble  and  petition 

By  the  First  Amendment  the  right  of  the  people  is 
guaranteed  "peaceably  to  assemble,  and  to  petition  the 
government  for  redress  of  grievances."  Almost  the  only 
discussion  by  the  Supreme  Court  of  this  provision  is  that 
contained  in  the  opinion  in  United  States  v.  Cruikshank,53 
in  which  it  is  held  that  the  right  is  distinctively  a  Federal 
one  secured  from  State  restriction. 

The  right  to  bear  arms 

By  the  Second  Amendment  it  is  provided  that  "a  well- 

5392U.  S.  542;  23  L.  ed.  588. 


LAW  OF  THE  UNITED  STATES  329 

regulated  militia,  being  necessary  to  the  security  of  a  free 
State,  the  right  of  the  people  to  keep  and  bear  arms,  shall 
not  be  infringed." 

The  quartering  of  troops 

The  provision  of  the  Third  Amendment  that  "no  soldier 
•shall  in  time  of  peace,  be  quartered  in  any  house,  without 
the  consent  of  the  owner,  nor  in  time  of  war,  but  in  a  man- 
ner to  be  prescribed  by  law,"  requires  little  explanation, 
and  has  received  practically  none  by  the  Supreme  Court. 

Slavery  and  involuntary  servitude 

The  prohibition  of  the  Thirteenth  Amendment  is  abso- 
lute upon  both  the  States  and  the  Federal  Government 
that  "neither  slavery  nor  involuntary  servitude,  except  as 
a  punishment  for  crime,  whereof  the  party  shall  have  been 
duly  convicted,  shall  exist  within  the  United  States,  or  any 
place  subject  to  their  jurisdiction." 

By  §  2  of  the  Amendment  Congress  is  given  the  power 
to  enforce  this  provision  by  appropriate  legislation. 

It  is  to  be  observed  that  whereas  the  Fourteenth  Amend- 
ment has  for  its  aim  the  protection  of  citizens  against 
action  on  the  part  of  the  States,  and  that,  therefore,  the 
legislative  power  of  Congress  under  its  enforcement  clause 
is  limited  to  the  prevention  or  punishment  of  the  pro- 
hibited acts  on  the  part  of  the  States,  the  Thirteenth 
Amendment  absolutely  prohibits  the  existence  of  the  in- 
stitution or  fact  of  slavery  or  involuntary  servitude,  and 
the  enforcement  clause,  therefore,  gives  to  the  General 
Government  the  power  to  punish  the  individual  or  in- 
dividuals, whether  private  persons  or  State  officials  who 
hold,  or  attempt  to  hold,  anyone  in  slavery  or  involuntary 
servitude. 

Pursuant  to  the  power  thus  given  Congress  has,  by 
various  acts,  declared  criminal  and  provided  punish- 


330  PRINCIPLES  OF  THE  CONSTITUTIONAL 

ment  for  those  persons  violating  the  constitutional^  pro- 
vision.54 

This  legislative  power  of  Congress  does  not,  however, 
extend  to  the  prohibition  and  punishment  of  those  acts 
which  do  not  themselves  amount  to  a  holding  of  one  in 
slavery  or  involuntary  servitude,  but  are  acts  which  in- 
fringe the  freedom  of  another.  Thus  in  Hodges  v.  United 
States55  was  sustained  a  demurrer  to  an  indictment  in  a 
Federal  court,  on  the  ground  of  lack  of  jurisdiction,  which 
indictment  charged  the  accused  with  compelling  certain 
negro  citizens,  by  intimidation  and  force,  to  desist  from 
performing  contracts  of  employment. 

To  the  argument  that  one  of  the  indicia  of  slavery  is  the 
lack  of  power  to  make  or  perform  contracts,  and  that  by 
the  acts  of  the  accused  this  disability  had  been  brought 
about  and  the  negroes  thus  pro  tanto  reduced  to  a  con- 
dition of  slavery,  the  court  replied  that  practically  every 
wrong  done  to  another  has  this  result,  and  to  concede  the 
claim  of  counsel  would  be  to  place  the  punishment  of  all 
acts  of  personal  wrong  or  duress  within  the  power  of  the 
Federal  Government. 

Involuntary  servitude:  Peonage 

The  Thirteenth  Amendment  had,  of  course,  for  its  chief 
purpose,  the  abolition  of  negro  slavery.  But  this  was  not 
the  sole  purpose.  Its  terms  were  purposely  made  broad 
enough  to  exclude  not  only  the  slavery  of  any  person,  what- 
ever his  race  or  color,  but  his  involuntary  servitude  save 
as  a  punishment  for  crime.  It  has  thus  become  necessary 

54  See  Chapter  10,  Act  of  March  4,  1909,  codifying,  revising  and 
amending  the  Federal  laws  of  the  United  States.    35  Stat.  at  L.  1138. 
As  to  the  direct  legislative  power  of  Congress  under  the  Thirteenth 
Amendment,  see  Clyatt  v.  United  States,  197  U.  S.  207;  25  Sup.  Ct. 
Rep.  429;  49  L.  ed.  726.    Also,  Civil  Rights  Cases,  109  U.  S.  3;  3  Sup. 
Ct.  Rep.  18;  27  L.  ed.  835. 

55  203  U.  S.  1;  27  Sup.  Ct.  Rep.  6;  51  L.  ed.  65. 


LAW  OF  THE  UNITED  STATES  331 

for  the  courts  to  pass  upon  the  constitutionality  of  various 
forms  of  compulsory  service  which,  while  not  amounting 
to  slavery,  have  been  alleged  to  constitute  involuntary 
servitude  or  peonage.56 

The  Thirteenth  Amendment  renders  unenforcible  con- 
tracts for  personal  services,  suits  for  damages  in  cases  of 
breaches  of  such  contracts  being  the  only  remedy  left  the 
ones  to  whom  such  services  have  been  promised.  A  more 
doubtful  question  is  as  to  the  power  of  the  States  or  the 
United  States  to  provide  punishment  for  the  breach  of 
contracts  for  personal  services.  Various  cases  have  been 
decided  in  the  State  and  Federal  courts  with  reference  to 
this  point.  In  general  it  may  be  said  that  the  doctrine 
is  established  that  statutes  making  criminal  the  mere 
breach  of  contract  is  void  as  in  violation  of  the  amendment; 
but  that  where  such  breach  involves  deliberate  fraud,  as 
for  example,  where  prepayment  for  the  services  has  been 
made  and  received,  the  law  will  be  sustained,  even  though 
the  effort,  by  intimidation,  may  be  to  compel  the  perform- 
ance of  the  promised  services.57 


56  In  Slaughter  House  Cases,  16  Wall.  36;  21  L.  ed.  394,  it  was 
held  that  servitude,  though  having  a  broader  meaning  than  slavery, 
did  not  include  the  obligation  to  resort  to  a  given  corporation  for 
the  slaughtering  of  live  stock,  the  obligation  being  imposed  as  an 
exercise  of  the  State's  police  power.    In  the  Civil  Rights  Cases,  109 
U.  S.  3;  3  Sup.  Ct.  Rep.  18;  27  L.  ed.  835,  it  was  held  that  the  denial 
to  a  person  of  admission  to  inns,  theaters,  public  conveyances,  etc., 
did  not  amount  to  involuntary  servitude  or  "tend  to  fasten  upon 
him  any  badge  of  slavery."    In  Plessy  v.  Ferguson,  163  U.  S.  537; 
16  Sup.  Ct.  Rep.  1138;  41  L.  ed.  256,  a  State  law  requiring  separate 
accommodations  for  white  and  colored  persons  was  declared  not 
within  the  prohibitions  of  the  amendment.    In  Robertson  v.  Bald- 
win, 165  U.  S.  275;  17  Sup.  Ct.  Rep.  326;  41  L.  ed.  715,  certain  pro- 
visions of  Federal  law  providing  for  the  arrest  and  return  of  deserting 
seamen,  was  held  beyond  the  prohibitive  effect  of  the  Amendment. 

57  See  upon  this  whole  subject,  Bailey  v.  Alabama,  219  U.  S.  219; 
31  Sup.  Ct.  Rep.  145;  55  L.  ed.  191, 


332  PRINCIPLES  OF  CONSTITUTIONAL  LAW 

Equity  courts  would  also  undoubtedly  feel  themselves 
justified  in  issuing  orders  restraining  servants  from  quitting 
work  at  a  time  that  will  endanger  human  life  or  limb,  or, 
indeed,  will  cause  unnecessary  or  irremediable  pecuniary 
loss  to  the  employer.  Thus,  for  example,  the  train  hands 
of  a  railway  company  might  be  forbidden  to  leave  their 
employment  before  bringing  their  train  to  its  destination, 
or  at  least  to  some  station  where  additional  hands  might 
be  obtained  to  operate  the  train.58 

68  Freund,  Police  Power,  §§  333,  452.  Also,  Toledo,  etc.,  Ry.  Co. 
v.  Pennsylvania  Co.,  54  Fed.  Rep.  730;  Arthur  v.  Oakes,  63  Fed.  Rep. 
310. 


CHAPTER  XXXVI 

DUE   PROCESS   OF   LAW 

Due  process  of  law:  Definition  of 

By  the  Fifth  Amendment  the  prohibition  is  laid  upon 
the  Federal  Government  that  "no  person  shall  be  .... 
deprived  of  life,  liberty,  or  property,  without  due  process 
of  law;  nor  shall  private  property  be  taken  for  public  use, 
without  just  compensation."  By  the  Fourteenth  Amend- 
ment a  similar  prohibition  with  reference  to  the  depriva- 
tion of  life,  liberty  or  property  is  laid  upon  the  States. 

In  almost  every  chapter  of  this  treatise  it  has  been 
necessary  to  discuss  the  meaning  of  these  prohibitions 
with  reference  to  the  exercise  of  specific  powers  by  the 
Federal  or  State  governments.  In  the  present  chapter, 
therefore,  the  attempt  will  be  made  to  determine  simply 
the  general  intent  and  scope  of  the  phrase  "due  process  of 
law." 

No  complete  and  rigid  definition  of  due  process  of  law 
has  been  given  by  the  Supreme  Court.  Indeed,  it  is 
questionable  whether  it  is  possible  to  give  one.  "Few 
phrases  in  the  law  are  so  elusive  of  exact  apprehension  as 
this,"  the  court  declare  in  the  recent  case  of  Twining  v. 
New  Jersey,1  and  add:  "This  court  has  always  declined 
to  give  a  comprehensive  definition  of  it,  and  has  preferred 
that  its  full  meaning  should  be  gradually  ascertained  by 
the  process  of  inclusion  and  exclusion  in  the  course  of  de- 
cisions of  cases  as  they  arise." 


1  211  U.  S.  78;  29  Sup.  Ct.  Rep.  14;  53  L.  ed.  97. 

333 


334  PRINCIPLES  OF  THE  CONSTITUTIONAL 

In  Hagar  v.  Reclamation  District2  it  is  said:  "It  is 
sufficient  to  say  that  by  due  process  of  law  is  meant  one 
which,  following  the  forms  of  law,  is  appropriate  to  the 
case  and  just  to  the  parties  to  be  affected.  It  must  be 
pursued  in  the  ordinary  mode  prescribed  by  law,  it  must 
be  adapted  to  the  end  to  be  attained,  and  whenever  it  is 
necessary  for  the  protection  of  the  parties,  it  must  give 
them  an  opportunity  to  be  heard  respecting  the  justness 
of  the  judgment  sought.  The  clause,  therefore,  means 
that  there  can  be  no  proceeding  against  life,  liberty,  or 
property  which  may  result  in  deprivation  of  either,  with- 
out the  observance  of  those  general  rules  established  in  our 
system  of  jurisprudence  for  the  security  of  private  rights." 
Due  process  of  law  thus  requires  the  adjudicating  court  to 
have  jurisdiction  of  both  the  parties  and  the  subject- 
matter;3  and  that  "the  laws  shall  operate  on  all  alike,  and 
do  not  subject  the  individual  to  an  arbitrary  exercise  of  the 
powers  of  government."4  " If  the  laws  enacted  by  a  State 
be  within  the  legitimate  sphere  of  legislative  power,  and 
their  enforcement  be  attended  with  the  observance  of 
those  general  rules  which  our  system  of  jurisprudence  pre- 
scribes for  the  security  of  private  rights,  the  harshness,  in- 
justice, and  oppressive  character  of  such  laws  will  not 
invalidate  them  as  affecting  life,  liberty  or  property  with- 
out due  process  of  law."5 

In  large  measure,  the  specific  contents  of  the  phrase 
"due  process  of  law"  are  to  be  ascertained  by  "an  examina- 
tion of  those  settled  usages  and  modes  of  proceedings 
existing  in  the  common  and  statute  law  of  England  before 


2  111  U.  S.  701;  4  Sup.  Ct.  Rep.  663;  28  L.  ed.  569. 

3  Pennoyer  v.  Neff,  95  U.  S.  714;  24  L.  ed.  565. 

4  Giozza  v.  Tiernan,  148  U.  S.  657;  13  Sup.  Ct.  Rep.  721;  37  L.  ed. 
599. 

5  Mo.  Pacific  Ry.  Co.  v.  Humes,  115  U.  S.  512;  6  Sup.  Ct.  Rep, 
110;  29  L.  ed.  463, 


LAW  OF  THE  UNITED  STATES  335 

the  emigration  of  our  ancestors,  and  shown  not  to  have 
been  unsuited  to  their  civil  and  political  condition  by  hav- 
ing been  acted  on  by  them  after  the  settlement  in  this 
country."  But  this  historical  method  of  determining  the 
meaning  of  the  phrase  is  not  to  be  exclusively  resorted  to, 
or  when  resorted  to,  the  court  to  be  concluded  thereby. 
That  is  to  say,  the  fact  that  a  given  procedure  is  not  to 
be  found  accepted  in  English  and  prior  American  practice 
is  not  to  be  held  as  conclusively  determining  it  not  to  be 
due  process  of  law.  If  the  procedure  under  examination 
can  be  shown  to  preserve  the  fundamental  characteristics 
and  to  provide  the  necessary  protection  to  the  individual, 
which  the  Constitution  was  intended  to  secure,  its  novelty 
will  not  vitiate  it.6 

Thus  it  has  been  held  that,  so  long  as  the  fundamental 
rights  of  litigants  to  a  fair  trial,  as  regards  notice,  opportu- 
nity to  present  evidence,  etc.,  and  adequate  relief  are  pro- 
vided, the  specific  requirements  of  the  Constitution  are 
not  violated.  Congress  has,  as  to  these  matters,  a  full 
discretion  as  to  the  form  of  the  trial  or  adjudication,  and 
the  character  of  the  remedy  to  be  furnished.  Further- 
more, the  States  not  being  bound  by  the  Fifth,  Sixth  and 
Seventh  Amendments,  grand  and  petit  juries  may  be 
dispensed  with  by  them.  So  also,  within  limits,  legisla- 
tures may  determine  what  evidence  shall  be  received, 
and  the  effect  of  that  evidence,  so  long  as  the  fundamental 
rights  of  the  parties  are  preserved.7 

No  person  has  a  vested  right  to  a  particular  remedy. 
"  The  State  has  full  control  over  the  procedure  in  its  courts, 
both  in  civil  and  criminal  cases,  subject  only  to  the  quali- 


6  Hurtado  v.  California,  110  U.  S.  516;  4  Sup.  Ct.  Rep.  Ill;  28  L. 
ed.  232. 

7  Fong  Yue  Ting  v.  United  States,  149  U.  S.  698;  13  Sup.  Ct.  Rep. 
1016;  37  L.  ed.  905,  and  authorities  there  cited.     See  also  Adams 
v.  New  York,  192  U.  S.  585;  24  Sup.  Ct.  Rep.  372;  48  L.  ed.  575. 


336  PRINCIPLES  OF  THE  CONSTITUTIONAL 

fication  that  such  procedure  must  not  work  a  denial  of 
fundamental  rights,  or  conflict  with  specific  and  applicable 
provisions  of  the  Federal  Constitution."8  Statutes  of 
limitations,  if  reasonable,  are  not  unconstitutional  as  a 
denial  of  property  or  contractual  rights.  The  authorities 
as  to  this  are  so  uniform  and  numerous  as  not  to  need 
citation. 

Due  process  of  law  does  not  require  the  provision  of  a 
right  of  appeal  from  a  trial  to  a  superior  court;9  nor  is  the 
exemption  of  one  accused  of  crime  fromself-incrimination.10 

It  is  not  essential  to  due  process  of  law  that  in  criminal 
cases  the  accused  shall  be  confronted  at  the  time  of  trial 
with  the  witnesses  against  him.  This  is  specifically  re- 
quired by  the  Sixth  Amendment  in  the  Federal  Courts, 
but  in  West  v.  Louisiana11  it  is  held  that  the  Fourteenth 
Amendment  does  not  lay  this  obligation  upon  the  States. 

It  is  not  essential  to  due  process  of  law  that  proceedings 
and  adjudications,  though  admittedly  of  a  judicial  nature, 
shall  be  had  in  courts  of  law.  It  not  infrequently  hap- 
pens that  administrative  boards  or  officers  in  the  discharge 
of  their  duties  are  compelled  to  consider  and  decide  upon 
matters  of  a  judicial  character,  and,  provided  an  adequate 
opportunity  is  offered  to  the  parties  to  appear  and  defend, 
due  process  of  law  is  not  denied  by  making  the  administra- 
tive determinations  they  reach  conclusive  and  not  open 
to  further  consideration  in  the  courts,  except,  of  course, 
as  to  the  matter  of  the  jurisdiction  of  the  officers  or  boards 


8  Brown  v.  New  Jersey,  175  U.  S.  172;  20  Sup.  Ct.  Rep.  77;  44  L. 
ed.   119. 

9  McKane  v.  Durston,  153  U.  S.  684;  14  Sup.  Ct.  Rep.  913;  38 
L.  ed.  867;  Pittsburgh  Ry.  Co.  v.  Backus,  154  U.  S.  421;  14  S'ip.  Ct. 
Rep.  1114;  38  L.  ed.  1031;  Reetz  v.  Michigan,  188  U.  S.  505;  23  Sup. 
Ct.  Rep.  390;  47  L.  ed.  563. 

10  Twining  v.  New  Jersey,  211  U.  S.  78;  29  Sup.  Ct.  Rep.  14;  53  L. 
ed.  97. 

11 194  U.S.  258;  24  Sup.  Ct.  Rep.  650;  48  L.  ed.  965. 


LAW  OF  THE  UNITED  STATES  337 

in  question,  or  as  to  whether  adequate  notice  and  opportu- 
nity to  defend  has  been  given  the  parties  affected.  In 
short,  "due  process  is  not  necessarily  judicial  process."12 
This  subject  is  more  fully  discussed  in  a  later  chapter  of 
this  treatise. 

The  mere  failure  to  comply  with  certain  formalities 
prescribed  by  a  State  law  is  not,  without  reference  to  what 
those  formalities  are,  a  denial  of  due  process.  "When, 
then,  a  State  court  has  decided  that  a  particular  formality 
is  or  is  not  essential  under  a  State  statute,  such  decision 
presents  no  Federal  question,  providing  always  that 
the  Statute  as  thus  construed  does  not  violate  the  Con- 
stitution of  the  United  States  by  depriving  of  property 
without  due  process  of  law.  This  paramount  requirement 
being  fulfilled,  as  to  other  matters  the  State  interpretation 
of  its  own  law  is  controlling  and  decisive." 

So  also  it  has  been  held  that  due  process  of  law  does  not 
protect  the  individual  who,  in  obedience  to  an  interpreta- 
tion given  by  executive  officers  to  a  statute,  takes  action 
which  is  later  held  by  the  courts  to  be  unwarranted  by 
that  statute. 

Due  process  and  substantive  rights 

In  the  discussion  thus  far  had  as  to  the  meaning  of  due 
process,  only  its  procedural  or  adjective  side  has  been 
emphasized.  We  turn  now  to  examine  in  how  far  sub- 
stantial rights  are  secured  to  the  individual  by  the  process 
clauses. 

It  is  quite  plain  that  the  phrase  due  process  of  law  is 
historically  related  to  and  derived  from  the  phrase  "per 
legem  terrae"  of  Magna  Carta,  and  that  the  provisions  of 

12  Reetz  v.  Michigan,  188  U.  S.  505;  23  Sup.  Ct.  Rep.  390;  47  L.  ed. 
563.  See  also  Davidson  v.  New  Orleans,  96  U.  S.  97;  24  L.  ed.  616; 
Murray's  Lessee  v.  Hoboken  Land  Co.,  18  How.  272;  15  L.  ed. 
372. 

22 


338  PRINCIPLES  OF  THE  CONSTITUTIONAL 

that  fundamental  document  were  intended,  and  have  since 
been  treated  as  a  limitation  not  upon  the  legislature  but 
upon  the  executive  and  upon  the  courts.  The  provision 
per  legem  terrce  thus  means  in  the  English  law  that  the  in- 
dividual shall  not  be  deprived  of  his  life,  liberty  or  property 
by  arbitrary  acts,  unsupported  by  existing  law,  whether 
common  or  statutory,  by  the  King  or  his  courts.  But  that 
the  law  is  subject  to  change  at  the  will  of  Parliament  is 
not  and  has  not  been  doubted.  The  property  rights  of  the 
individual  were  thus  at  the  time  of  the  adoption  of  our 
Constitution,  and  have  since  remained,  subject  to  the 
plenary  legislative  power  of  Parliament.  There  is  thus 
some  historical  ground  for  holding  that,  in  the  absence  of 
explicit  provision  to  the  contrary,  the  due  process  clauses 
of  the  Federal  Constitution  were  not  intended  as  a  re- 
straint, the  one  upon  Congress,  and  the  other  upon  the 
State  legislatures. 

Upon  the  other  hand,  however,  the  general  purpose  of 
written  constitutions  in  the  United  States,  if  not  originally 
in  all  cases,  has  come  to  be  quite  different  from  that  of 
the  Magna  Carta.  In  this  country  our  written  instru- 
ments of  government  and  their  accompanying  Bills  of 
Rights  have  for  their  aim  the  delimitation  of  the  powers 
of  all  the  departments  of  government,  the  legislative  as 
well  as  the  executive  and  the  judicial,  and  it  is  therefore, 
quite  proper  to  hold  that  the  requirements  of  due  process 
of  law  should  not  only  prohibit  executive  and  judicial 
officers  from  proceeding  against  the  individual,  except  in 
conformity  with  the  procedural  requirements  which  have 
been  mentioned  in  the  earlier  part  of  the  chapter,  but  also 
operate  to  nullify  legislative  acts  which  provide  for  the 
taking  of  private  property  without  compensation,  or  life 
or  liberty  without  cause,  or,  in  general,  for  executive  or 
judicial  action  against  the  individual  of  an  arbitrary  or 
clearly  unjust  and  oppressive  character. 


LAW  or  THE  UNITED  STATES  339 

In  1869,  in  Hepburn  v.  Griswold,13  the  Supreme  Court 
took  definitely  the  view  that  Congress  was  restrained  by 
the  due  process  clause  of  the  Fifth  Amendment. 

With  reference  to  the  inhibitions  of  the  Fourteenth 
Amendment  there  was  never  any  doubt  that  they  re- 
strained the  legislative  power  of  the  States.14  In  C.,  B.  & 
Q.  Ry.  Co.  v.  Chicago13  the  court  say  in  language  leaving 
no  room  for  doubt:  "In  our  opinion,  a  judgment  of  a  State 
court,  even  if  it  be  authorized  by  statute,  whereby  private 
property  is  taken  for  the  State  or  under  its  direction  for 
public  use,  without  compensation  made  or  secured  to  the 
owner,  is,  upon  principle  and  authority,  wanting  in  the  due 
process  of  law  required  by  the  Fourteenth  Amendment." 

When,  however,  the  complaint  is  merely  that  a  State 
court  has  erroneously  decided  the  facts  of  a  case,  all  of  the 
proceedings  before  it  being  regular  and  sufficient  no  claim 
of  a  denial  of  due  process  can  be  set  up.16 

It  being  established,  then,  that  the  substantive  rights 
of  the  individual  are  protected  by  the  due  process  of  law 
clauses,  it  becomes  necessary  to  consider  what  these  rights 
of  life,  liberty,  and  property  are. 

Life 

The  right  of  life  requires  no  definition. 

Liberty 

Liberty  and  property  are  terms  which  have  each  re- 
ceived definitions  broad  enough  to  cause  their  connota- 
tions in  very  considerable  measure  to  overlap.  Thus  in 
Allgeyer  v.  Louisiana  17  the  court,  defining  liberty,  say : 

13  8  Wall.  603;  19  L.  ed.  513. 

14  Ex  parte  Virginia,  100  U.  S.  339;  25  L.  ed.  676;  Hurtado  v. 
California,  110  U.  S.  516;  4  Sup.  Ct.  Rep.  Ill;  28  L.  ed.  232. 

15 166  U.  S.  226;  17  Sup.  Ct.  Rep.  581;  41  L.  ed.  979. 
16  Central  Land  Co.  v.  Laidley,  159  U.  S.  103;  16  Sup.  Ct.  Rep. 
80;  40  L.  ed.  91. 

17 165  U.  S.  578;  17  Sup.  Ct.  Rep.  427;  41  L.  ed.  832. 


340  PRINCIPLES  OF  THE  CONSTITUTIONAL 

"The  liberty  mentioned  in  the  Fourteenth  Amendment 
means  not  only  the  right  of  the  citizen  to  be  free  from  the 
mere  physical  restraint  of  his  person,  as  by  incarceration, 
but  the  term  is  deemed  to  embrace  the  right  of  the  citizen 
to  be  free  in  the  engagement  of  all  of  his  faculties;  to  be 
free  to  use  them  in  all  lawful  ways;  to  live  and  to  work 
where  he  will;  to  earn  his  livelihood  by  any  lawful  calling; 
to  pursue  any  livelihood  or  avocation;  and  for  that  pur- 
pose to  enter  into  all  contracts  which  may  be  proper, 
necessary,  and  essential  to  his  carrying  out  to  a  successful 
conclusion  the  purposes  above  mentioned." 

With  this  definition  of  liberty  may  be  compared  the 
following  definition,  by  the  Supreme  Court  of  Illinois, 
of  property:  "The  right  of  property  preserved  by  the  Con- 
stitution," say  the  court,  "is  the  right  not  only  to  possess 
and  enjoy  it,  but  also  to  acquire  it  in  any  lawful  mode,  or 
by  following  any  lawful  industrial  pursuit  which  the  citi- 
zen, in  the  exercise  of  the  liberty  guaranteed,  may  choose 
to  adopt.  Labor  is  the  primary  foundation  of  all  wealth. 
The  property  which  each  one  has  in  his  own  labor  is  the 
common  heritage.  And  as  an  incident  to  the  right  to 
acquire  other  property,  the  liberty  to  enter  into  contracts 
by  which  labor  shall  be  employed  in  such  way  as  the  la- 
borer shall  deem  most  beneficial,  and  of  others  to  employ 
such  labor,  is  necessarily  included  in  the  constitutional 
guaranty."18 

The  foregoing  definitions  make  it  sufficiently  plain  that 
contractual  rights,  as  a  species  of  property  rights,  or  as 
included  within  the  definition  of  liberty,  are  fully  pro- 
tected by  the  due  process  clauses.  In  Holden  v.  Hardy 
there  is  an  explicit  statement  to  this  effect. 

The  manner  in  which  the  rights  of  property  and  of 


18  Braceville  Coal  Co.  v.  People,  147  111.  66.    Quoted  by  McGehee, 
Due  Process  of  Law,  141. 


LAW  OF  THE  UNITED  STATES  .    341 

liberty,  including  liberty  of  contract,  are  held  subject  to 
the  exercise  of  such  powers  of  the  State  as  those  of  eminent 
domain,  taxation,  the  regulations  of  occupations  affected 
with  a  public  interest,  is  considered  passim  throughout 
this  treatise,  and  does  not  require  specific  treatment  in  this 
place.  A  special  word  with  reference  to  the  police  powers 
is,  however,  needed. 

Police  power  defined 

One  of  the  classic  definitions  of  the  police  power  is  that 
of  Chief  Justice  Shaw,  given  in  his  opinion  in  Common- 
wealth v.  Alger.  He  says:  "We  think  it  is  a  settled  princi- 
ple, growing  out  of  the  nature  of  well-ordered  civil  society, 
that  every  owner  of  property,  however  absolute  and  un- 
qualified may  be  his  title,  holds  it  under  the  implied  lia- 
bility that  his  use  of  it  shall  not  be  injurious  to  the  general 
enjoyment  of  others  having  an  equal  right  to  the  enjoy- 
ment of  their  property,  not  injurious  to  the  rights  of  the 
community.  All  property  in  this  Commonwealth  is  .  .  .  . 
held  subject  to  those  general  regulations  which  are  neces- 
sary to  the  common  good  and  general  welfare.  Rights 
of  property,  like  all  other  social  and  conventional  rights, 
are  subject  to  such  reasonable  limitations  in  their  enjoy- 
ment as  shall  prevent  them  from  being  injurious,  and  such 
reasonable  restraints,  and  regulations  established  by  law 
as  the  legislature,  under  the  governing  and  controlling 
power  vested  in  them  by  the  Constitution,  may  think 
necessary  and  expedient.  This  is  very  different  from  the 
right  of  eminent  domain, — the  right  of  a  government  to 
take  and  appropriate  private  property  whenever  the  pub- 
lic exigency  requires  it,  which  can  be  done  only  on  con- 
dition of  providing  a  reasonable  compensation  therefor. 
The  power  we  allude  to  is  rather  the  police  power;  the 
power  vested  in  the  legislature  by  the  Constitution  to 
make,  ordain,  and  establish  all  manner  of  wholesome  and 


342  PRINCIPLES  OF  THE  CONSTITUTIONAL 

reasonable  laws,  statutes,  and  ordinances,  either  with 
penalties,  or  without,  not  repugnant  to  the  Constitution, 
as  they  shall  judge  to  be  for  the  good  and  welfare  of  the 
Commonwealth,  and  of  the  subjects  of  the  same.  It  is 
much  easier  to  perceive  and  realize  the  existence  and  the 
sources  of  this  power  than  to  mark  its  boundaries,  and 
prescribe  the  limits  to  its  exercise." 

In  the  police  power  of  the  State,  which  it  has  been 
held,  is  a  right  which  State  may  not  part  with  even  by 
express  contract,  we  thus  have  a  general  right  upon  the 
part  of  the  public  authority  to  abridge  or  destroy,  with- 
out compensation,  the  property  or  contract  rights  of 
individuals  and  to  control  their  conduct  in  so  far  as  this 
may  be  necessary  for  the  protection  of  the  community 
against  danger  in  any  form,  against  fraud,  vice,  or  economic 
oppression,  or  even  for  the  securing  of  public  convenience. 
In  Noble  State  Bank  v.  Haskell,19the  court  declare: "  It  may 
be  said  in  a  general  way  that  the  police  power  extends  to 
all  the  great  public  needs.  It  may  be  put  forth  in  aid  of 
what  is  sanctioned  by  usage,  or  held  by  the  prevailing 
or  strong  and  preponderant  opinion  to  be  greatly  and  im- 
mediately necessary  to  the  public  welfare." 

The  police  power  is  not,  however,  without  limits,  or 
otherwise  the  prohibition  as  to  taking  of  life,  liberty  or 
property  without  due  process  of  law  would  be  wholly 
shorn  of  its  restraining  force.  It  always  lies  within  the 
power  of  the  courts  to  hold  void  a  law  which,  though 
enacted  as  a  police  measure,  is  not,  in  the  opinion  of  the 
court,  justified  as  such,  and  is  therefore  a  taking  of  prop- 
erty or  an  abridgement  of  freedom  without  the  process 
of  law.  Thus,  in  Lochner  v.  New  York,20  the  court  in 
holding  void  a  State  law  regulating  the  number  of  hours 
that  adult  laborers  might  be  employed  in  bake  shops, 

19  219  U.  S.  575;  31  Sup.  Ct.  Rep.  186;  55  L.  ed.  341. 
20 198  U.  S.  45;  25  Sup.  Ct.  Rep.  539;  49  L.  ed.  937. 


LAW  OF  THE  UNITED  STATES  343 

declared:  " There  is  no  reasonable  ground  for  interfering 
with  the  liberty  of  person  or  the  right  of  full  control  by 
determining  the  hours  of  labor  in  the  occupation  of  a 
baker.  .  .  .  The  mere  assertion  that  the  subject  relates, 
though  but  in  a  remote  degree,  to  the  public  health,  does 
not  necessarily  render  the  enactment  valid.  The  act  must 
have  a  more  direct  relation  as  a  means  to  an  end,  and  the 
end  itself  must  be  appropriate  and  legitimate,  before  an 
act  can  be  held  valid  which  interferes  with  the  general 
right  of  an  individual  to  be  free  in  his  person  and  in  his 
power  to  contract  in  relation  to  his  own  labor." 

In  general  it  may  be  said  that  while,  by  a  legitimate  ex- 
ercise of  the  police  power,  the  conduct  of  individuals  and 
the  use  by  them  of  their  property  may  be  regulated,  or, 
in  some  cases,  their  property  even  destroyed,  as  for  ex- 
ample, when  a  building  is  torn  down  to  prevent  the  spread 
of  a  conflagration,  the  State  is  never  justified  in  a  direct 
taking  of  property  for  its  own  use,  nor  in  ordering  the 
transfer  of  property  from  one  individual  to  another  per- 
son. In  Noble  State  Bank  y.  Haskell,  Justice  Holmes 
did,  indeed,  say  that  "an  ulterior  public  advantage  may 
justify  a  comparatively  insignificant  taking  of  private 
property  for  what  is,  in  immediate  purpose,  a  private  use," 
but,  on  motion  for  rehearing  he  took  care  to  say  he  had 
not  intended  to  give  a  new  or  wider  scope  to  the  police 
power,  for  that,  in  fact,  in  the  case  at  hand,  there  had  been 
no  unconditional  taking  at  all.  The  cases  cited,  he  said, 
were  to  establish,  "not  that  property  might  be  taken  for 
a  private  use,  but  that,  among  the  public  uses  for  which 
it  might  be  taken,  were,  some  which,  if  looked  at  only  in 
their  immediate  aspect,  according  to  the  proximate  effect 
of  the  taking,  might  seem  to  be  private." 

Equal  protection  of  the  laws 
The  United  States  is  not  expressly  forbidden  by  the 


344  PRINCIPLES  OF  THE  CONSTITUTIONAL 

Constitution  to  deny  to  anyone  the  equal  protection  of  the 
laws,  as  are  the  States  by  the  first  section  of  the  Four- 
teenth Amendment.  It  would  seem,  however,  that  the 
broad  interpretation  which  the  prohibition  as  to  "due  proc- 
ess of  law"  has  received  is  sufficient  to  cover  very  many 
of  the  acts  which,  if  committed  by  the  States,  might  be 
attacked  as  denying  equal  protection.  Thus  it  has  been 
repeatedly  declared  that  enactments  of  a  legislature  di- 
rected against  particular  individuals  or  corporations,  or 
classes  of  such,  without  any  reasonable  ground  for  select- 
ing them  out  of  the  general  mass  of  individuals  or  corpora- 
tions, amounts  to  a  denial  of  due  process  of  law  as  far  as 
their  life,  liberty  or  property  is  affected.  One  of  the 
requirements  of  due  process  of  law,  as  stated  by  the  Su- 
preme Court,  is  that  the  laws  "operate  on  all  alike,  and 
so  not  subject  the  individual  to  an  arbitrary  exercise  of 
the  powers  of  government." 

In  Smyth  v.  Ames21  the  authorities  are  reviewed,  and 
from  them  the  general  conclusion  drawn  that  a  State  law 
"establishing  rates  for  the  transportation  of  persons  or 
property  by  railroad  that  will  not  admit  of  the  carrier 
earning  such  compensation  as  under  all  circumstances  is 
just  to  it  and  to  the  public,  would  deprive  such  carrier  of 
his  property  without  due  process  of  law,  and  deny  to  it 
the  equal  protection  of  the  laws."  Throughout  this  case, 
indeed,  the  requirement  of  due  process  of  law  is  treated  as 
necessarily  including  equal  protection  within  its  scope. 

Obligations 'of  contracts 

No  specific  inhibition  is  laid  upon  the  Federal  Govern- 
ment by  the  Constitution  with  reference  to  the  impair- 
ment of  the  obligation  of  contracts.  That  government 
is,  however,  forbidden  by  the  Fifth  Amendment  to  de- 
prive persons  of  property  without  due  process  of  law  or  to 

21  169  U.  S.  466;  18  Sup.  Ct.  Rep.  418;  42  L.  ed.  819. 


LAW  OP  THE  UNITED  STATES  345 

take  private  property  for  a  public  use  without  just  com- 
pensation. In  so  far,  then,  as  contract  rights  may  be 
treated  as  property  they  are  protected  from  direct  impair- 
ment by  Federal  action.  This  was  definitely  declared,  as 
we  have  earlier  seen  in  the  first  legal  tender  decision  of 
Hepburn  v.  Griswold.22 

Contracts  are  not,  however,  protected  from  any  in- 
direct impairment  of  their  obligation  when  this  incidentally 
results  from  the  exercise  by  Congress  of  a  legislative  power 
constitutionally  given  it.  Thus  in  Knox  v.  Lee,23  with 
reference  to  the  due  process  of  law  requirement  of  the 
Fifth  Amendment,  the  court  say:  "That  provision  has 
always  been  understood  as  referring  only  to  a  direct  ap- 
propriation and  not  to  consequential  injuries  resulting 
from  the  exercise  of  lawful  power.  It  has  not  been  sup- 
posed to  have  any  bearing  upon  or  to  inhibit  laws  that  in- 
directly, work  harm  and  loss  to  individuals.  A  new  tariff, 
an  embargo,  a  draft  or  a  war,  may  inevitably  bring  upon 
individuals  great  losses,  may  indeed  render  valuable 
property  almost  valueless.  They  may  destroy  the  worth 
of  contracts." 


22  8  Wall.  603;  19  L.  ed.  513. 

23 12  Wall.  457;  20  L.  ed.  287.    See,  also,  Sinking  Fund  Cases,  99 
U.  S.  700;  25  L.  ed.  496. 


CHAPTER  XXXVII 

PROHIBITIONS   LAID   UPON   THE    STATES 

The  prohibitions  upon  State  action  imposed  by  the 
Federal  Constitution  are  of  two  kinds:  (1)  those  that  arise 
from  the  fact  that  their  exercise  would  be  inconsistent  with 
the  powers  possessed  by  the  Federal  Government;  and 
(2)  those  specifically  laid  down  in  the  Federal  Constitu- 
tion. These  limitations  upon  the  powers  of  the  States 
incidental  to  the  general  nature  of  the  Federal  Government 
and  to  the  powers  possessed  by  it  are  treated  in  their  ap- 
propriate places  in  this  treatise.  In  this  chapter  there 
will  be  considered  the  express  limitations  upon  the  States 
as  enumerated  in  the  Constitution.  These  are  found  in 
§.  X  of  Art.  I,  and  in  the  Thirteenth,  Fourteenth,  and  Fif- 
teenth Amendments. 

Various  other  clauses  of  the  Constitution,  as,  for  ex- 
ample, §§  I,  II,  and  IV  of  Art.  IV  and  Art.  VI,  by  imposing 
specific  obligations  upon  the  States  may  be  said  to  create 
corresponding  limitations,  but  these  are  elsewhere  con- 
sidered in  this  work. 

That  the  prohibitions  of  the  first  eight  amendments, 
like  those  contained  in  §  IX  of  Art.  I  of  the  Constitution 
relate  exclusively  to  the  Federal  Government,  and  place 
no  restrictions  upon  State  actions  has  been  uniformly 
held  since  the  first  declaration  of  the  principle  in  Barren 
v.  Baltimore.1  That  the  adoption  of  the  Fourteenth 
did  not  operate  to  alter  this  doctrine  has  been  pointed  out 

'TPet.  243;  8  L.  ed.  672. 
346 


LAW  OF  THE  UNITED  STATES  347 

in  this  treatise.2  The  specific  prohibitions  laid  upon  the 
States  with  reference  to  slavery  and  involuntary  servitude, 
due  process  of  law,  and  the  equal  protection  of  the  laws, 
have  been  considered  in  the  preceding  chapter. 

Bills  of  credit 

The  first  clause  of  §  X  of  Art.  I  of  the  Constitution  de- 
clares that  "no  State  shall  ....  emit  bills  of  credit; 
[or]  make  anything  but  gold  and  silver  coin  a  tender  in 
payment  of  debts." 

In  Craig  v.  Missouri,3  decided  in  1830,  the  Supreme 
Court  was  for  the  first  time  called  upon  to  determine 
squarely  what  constitutes  a  "  bill  of  credit;"  within  the 
meaning  of  the  constitutional  prohibition.  In  this  case 
was  questioned  the  power  of  the  State  to  issue  certain 
interest  bearing  certificates,  not  declared  legal  tender,  but 
receivable  at  the  treasury  or  any  of  the  loan  offices  of  the 
State  in  discharge  of  taxes  or  payment  of  debts  due  to  the 
State.  Certain  property  of  the  State  was  pledged  to  their 
redemption,  and  the  governor  was  authorized  to  negotiate 
a  loan  of  silver  or  gold  for  the  same  purpose.  These  certifi- 
cates, it  was  provided,  might  be  loaned  to  citizens  of  the 
State  upon  real  estate  or  personal  security.  These 
certificates,  the  Supreme  Court  held,  Justices  Thompson, 
M'Lean  and  Johnson  dissenting,  to  be  bills  of  credit,  and 
as  such  illegally  e'mitted.  In  his  opinion  Marshall  says: 
"To  'emit  bills  of  credit'  conveys  to  the  mind  the  idea  of 
issuing  paper  intended  to  circulate  through  the  community 
for  its  ordinary  purposes,  as  money,  which  paper  is  re- 
deemable at  a  future  day." 

Having  adverted  to  the  characteristics  of  the  certificates 
in  question,  their  denominations, — from  ten  dollars  to 
fifty  cents — their  receivability  for  taxes,  etc.,  as  indicat- 

2  P.  71. 

3  4  Pet.  410;  7  L.  ed.  903. 


348  PRINCIPLES  OF  THE  CONSTITUTIONAL 

ing  conclusively  that  they  were  intended  and  fitted  for 
circulation  as  currency,  the  court  overrules  the  conten- 
tion that  they  were  not  to  be  deemed  bills  of  credit  in 
the  constitutional  sense  because  not  made  legal  tender. 
"The  Constitution  itself"  it  is  declared  "furnishes  no 
countenance  to  this  distinction.  The  prohibition  is  gen- 
eral. It  extends  to  all  bills  of  credit,  not  to  bills  of  a 
particular  description." 

In  the  case  of  Briscoe  v.  Bank  of  Kentucky  4  was  ques- 
tioned the  power  of  the  State  to  charter  a  bank,  of  which 
the  State  was  the  sole  stockholder,  with  the  power  of  issu- 
ing notes  payable  to  bearer  on  demand  designed  to  circu- 
late as  money.  The  case  was  first  argued  just  before  the 
death  of  Chief  Justice  Marshall,  and  the  issue  of  these 
notes  by  the  bank  was  held  to  be,  in  effect,  the  issuance 
of  bills  of  credit  by  the  State  itself.  A  rehearing  being 
granted,  however,  and  the  case  coming  on  for  argument 
before  the  court  presided  over  by  Taney,  the  previous 
decision  was  reversed,  and  the  notes  held  to  be  constitu- 
tionally issued.  Justice  M'Lean  delivered  the  opinion  of 
the  court  saying:  "To  constitute  a  bill  of  credit  within  the 
Constitution,  it  must  be  issued  by  a  State,  on  the  faith  of 
the  State,  and  be  designed  to  circulate  as  money.  It  must 
be  a  paper  which  circulates  on  the  credit  of  the  State,  and 
is  so  received  and  used  in  the  ordinary  business  of  life. 
The  individuals  or  committee  who  issue  the  bill  must  have 
the  power  to  bind  the  State;  they  must  act  as  agents,  and 
of  course  do  not  incur  any  personal  responsibility,  nor  im- 
part, as  individuals,  any  credit  to  the  paper.  These  are 
the  leading  characteristics  of  a  bill  of  credit,  which  a  State 
cannot  emit." 

Continuing,  the  court  deny  that  the  notes  of  the  bank 
were  issued  by  the  State,  or  that  they  contained  a  pledge 


11  Pet.  257;  9  L.  ed.  709. 


LAW  OF  THE  UNITED  STATES  349 

of  the  credit  of  the  State.  The  fact  that  the  State  was  the 
exclusive  stockholder  of  the  bank  was  held  immaterial. 

In  Darrington  v.  Bank  of  Alabama5  the  doctrine  of  the 
Briscoe  case  was  reaffirmed.  In  this  case  the  State  was 
not  only  the  sole  stockholder  of  the  bank  but  had  pledged 
its  credit  for  the  ultimate  redemption  of  the  notes.  This, 
however,  it  was  held,  did  not  operate  to  transform  the 
notes  into  state-emitted  bills  of  credit  for  the  reason  that 
the  bank  had  corporate  property  of  its  own  which  was 
primarily  liable  and  sufficient  for  the  payment  of  the  notes. 

In  the  Virginia  coupon  case  of  Poindexter  v.  Greenhow6 
the  court  held  that  interest  coupons  cut  from  bonds  is- 
sued by  the  State  and  made  receivable  by  the  State  in 
payment  of  taxes  due  it,  were  not  bills  of  credit.  Though 
promises  to  pay  money,  and  the  credit  of  the  State  pledged 
therefor,  and  receivable  by  the  State  for  taxes,  the  coupons 
were  not  issued  or  emitted  as  a  circulating  medium  or 
paper  currency. 

In  Houston  etc.  Ry.  Co.  v.  Texas 7  a  warrant  drawn  by 
State  authorities  in  payment  of  an  appropriation  made  by 
the  legislature  for  a  debt  due  by  the  State  and  payable 
upon  presentation  if  there  should  be  any  funds  in  the 
treasury,  was  held  to  be  not  a  bill  of  credit  within  the 
meaning  of  the  constitutional  prohibition. 

Ex  post  facto  legislation 

By  §  X,  Clause  I  of  Art.  I,  the  States  are  forbidden  to 
pass  any  ex  post  facto  law.  The  same  prohibition  is  laid 
upon  the  Federal  legislature  by  the  third  clause  of  §  IX, 
and  the  force  of  this  prohibition  has  been  sufficiently  con- 
sidered in  the  preceding  chapter. 


5 13  How.  12;  14  L.  ed.  30. 

6 114  U.  S.  270;  5  Sup.  Ct.  Rep.  903;  29  L.  ed.  185. 

7 177  U.  S.  66;  20  Sup.  Ct.  Rep.  545;  44  L.  ed.  673. 


350  PRINCIPLES  OF  THE  CONSTITUTIONAL 

Equal  protection  of  the  law 

As  in  the  case  of  due  process  of  law,  the  requirement  of 
the  Fourteenth  Amendment  as  to  the  equal  protection  of 
the  law  receives  specific  incidental  consideration,  through- 
out this  treatise.  It  is,  therefore,  not  necessary  here  to 
more  than  state  the  general  meaning  of  the  term. 

Shortly  stated,  the  requirement  is  not  that  all  persons 
(including  corporations)  shall  be  treated  exactly  alike, 
but  that  where  a  distinction  is  made  there  shall  be  a  reason- 
able ground  therefor — one  based  on  administrative  or 
political  necessity  or  convenience,  or  on  economic  needs. 
Thus  in  the  exercise  of  the  States'  power  of  taxation  or  of 
police,  or  of  the  other  powers,  classifications  of  'the  per- 
sons or  properties  to  be  affected  may  be  made.  But,  when 
such  classifications  are  made,  the  laws  must  operate  uni- 
formly upon  all  the  members  of  each  class.  This  subject 
is  elsewhere  particularly  discussed  in  connection  with  the 
law  of  inheritance  taxes  and  special  assessments.8 

Corporations  equally  with  natural  persons  are  entitled 
to  the  protection  of  the  clause.9 

But  it  is  to  be  observed  that  as  to  foreign  corporations, 
a  State  having  the  constitutional  right  to  say  whether  a 
corporation  not  chartered  by  itself  shall  do  business  within 
its  limits  (interstate  commerce  excepted)  the  State  may 
impose  upon  such  corporations  as  conditions  precedent 
to  the  enjoyment  of  the  privilege,  such  special  conditions 
as  it  may  see  fit. 

Perhaps  the  best  general  statement  of  the  scope  and  in- 
tent of  the  provision  for  the  equal  protection  of  the  laws 
is  that  given  by  Justice  Field  in  his  opinion  in  Barbier  v. 
Connolly,10  in  which,  speaking  for  the  court,  he  says: 

8  P.  384. 

9Pembina  Silver  Mining  Co.  v.  Pennsylvania,  125  U.  S.  181;  8 
Sup.  Ct.  Rep.  737;  31  L.  ed.  650. 

10 113  U.  S.  27;  5  Sup.  Ct.  Rep.  357;  28  L.  ed.  923. 


LAW  OF  THE  UNITED  STATES  351 

"The  Fourteenth  Amendment  in  declaring  that  no 
State  'shall  deprive  any  person  of  life,  liberty  or  property 
without  due  process  of  law,  nor  deny  to  any  person  within 
its  jurisdiction  the  equal  protection  of  the  laws/  undoubt- 
edly intended,  not  only  that  there  should  be  no  arbitrary 
deprivation  of  life  or  liberty  or  arbitrary  spoliation  of 
property  but  that  equal  protection  and  security  should 
be  given  to  all  under  like  circumstances  in  the  enjoyment 
of  their  personal  and  civil  rights;  that  all  persons  should 
be  equally  entitled  to  pursue  their  happiness  and  acquire 
and  enjoy  property;  that  they  should  have  like  access  to 
the  courts  of  the  country  for  the  protection  of  their  persons 
and  property,  and  the  prevention  and  redress  of  wrongs, 
and  the  enforcement  of  contracts;  that  no  impediment 
should  be  interposed  to  the  pursuits  of  any  one  except  as 
applied  to  the  same  pursuits  by  others  under  like  circum- 
stances; that  no  greater  burdens  should  be  laid  upon  one 
than  are  laid  upon  others  in  the  same  calling  and  condition, 
and  that  in  the  administration  of  criminal  justice  no  differ- 
ent or  higher  punishment  should  be  imposed  upon  the 
one  than  such  as  is  prescribed  to  all  for  like  offenses.  But 
neither  the  Amendment,  broad  and  comprehensive  as  it 
is,  nor  any  oiher  amendment  was  designed  to  interfere 
with  the  power  of  the  State,  sometimes  termed  the  'police 
power,'  to  prescribe  regulations  to  promote  the  health, 
peace,  morals,  education  and  good  order  of  the  people, 
and  to  legislate  so  as  to  increase  the  industries  of  the  State, 
develop  its  resources  and  add  to  its  wealth  and  prosperity." 

Illustrative  cases  arising  under  the  equal  protection  clause 

The  enumeration  of  some  of  the  specific  applications 
which  the  requirement  of  equal  protection  of  the  laws  has 
received  will  sufficiently  illustrate  its  scope  and  intent. 

The  provision  of  the  Fourteenth  Amendment  guarantees 
to  individuals  and  to  corporations  that  they  shall  not  by 


352  PKINCIPLES  OF  THE  CONSTITUTIONAL 

State  law  be  excluded  from  the  enjoyment  of  privileges 
which  other  persons  and  corporations  similarly  circum- 
stanced enjoy,  or  that  they  may  not  have  imposed  upon 
them  burdens  which  others  similarly  circumstanced  are 
free  from.  But  no  one  is  guaranteed  that,  in  fact,  through 
the  fortuitous  operation  of  a  law,  which  in  itself  is  not  dis- 
criminative, a  special  burden  may  not  be  imposed,  or  the 
enjoyment  of  a  privilege  taken  away.  Thus  for  example, 
in  Strauder  v.  West  Virginia11  a  State  law  was  held  in- 
valid which  denied  to  members  of  the  colored  race  the 
right  to  act  upon  juries,  the  court  saying,  "the  law  in  the 
State  shall  be  the  same  for  the  black  as  for  the  white ;  and 
all  persons  whether  colored  or  white,  shall  stand  equal  be- 
fore the  laws  of  the  State."  But  in  Virginia  v.  Rives12  and 
other  cases  it  is  held  that  the  fact  that  it  happens  that  no 
negroes  are  in  fact  drawn  upon  juries,  or  vice  versa,  that 
no  whites  are  so  drawn,  is  not  constitutionally  objection- 
able, unless  it  affirmatively  appear  that  the  State  officials 
intrusted  with  the  administration  of  the  law  arbitrarily 
and  with  intent  have  given  an  unequal  and  discriminative 
effect  to  the  law. 

The  case  of  Yick  Wo  v.  Hopkins13  involved  the  validity 
of  an  ordinance  of  the  city  of  San  Francisco  which  required 
all  persons  desiring  to  establish  laundries  in  frame  houses 
to  obtain  the  consent  of  certain  municipal  officials.  Here 
the  law  or  ordinance  was  not  upon  its  face  discriminatory, 
but  it  was  held  void  for  the  reason  that  it  gave  to  the 
designated  officials,  "not  a  discretion  to  be  exercised  upon  a 
consideration  of  the  circumstances  of  each  case,  but  a  naked 
and  arbitrary  power  to  give  or  withhold  consent  not  only 
as  to  places  but  as  to  persons,"  and  because  the  evidence 

11 100  U.  S.  303;  25  L.  ed.  664. 

12 100  U.  S.  313;  25  L.  ed.  667.    See,  also,  Gibson  v.  Mississippi, 
162  U.  S.  565;  16  Sup.  Ct.  Rep.  904;  40  L.  ed.  1075. 
13  118  U.  S.  356;  6  Sup.  Ct.  Rep.  1064;  30  L.  ed.  220, 


LAW  OF  THE  UNITED  STATES  353 

showed  in  fact  "an  administration  directed  so  exclusively 
against  a  particular  class  of  persons  (the  Chinese)  as  to 
warrant  and  require  the  conclusion  that  whatever  may 
have  been  the  intent  of  the  ordinances  so  adopted,  they 
are  applied  by  the  public  authorities  charged  with  their 
administration  and  thus  representing  the  State  itself,  with 
mind  so  unequal  and  oppressive  as  to  amount  to  a 
practical  denial  by  the  State  of  that  equal  protection  of 
the  law  which  is  secured  to  the  petitioners  as  to  all  other 
persons  by  the  broad  and  benign  provisions  of  the  Four- 
teenth Amendment."  The  court  then  go  on  to  declare 
the  general  doctrine:  " Though  the  law  be  fair  on  its  face, 
and  impartial  in  appearance,  yet,  if  it  is  applied  and  ad- 
ministered by  public  authority  with  an  evil  eye  and  un- 
equal hand  so  as  to  practically  make  unjust  and  illegal 
discriminations  between  persons  in  similar  circumstances, 
material  to  their  rights,  the  denial  of  equal  justice  is  still 
within  the  prohibition  of  the  Constitution." 

The  requirement  as  to  the  equal  protection  of  the  law 
does  not  operate  to  prevent  the  States  from  restricting  the 
enjoyment  of  political  privileges  to  such  classes  of  their 
citizens  as  they  may  see  fit. 

Classifications 

When  there  are  reasonable  economic  or  political  or 
social  reasons  for  doing  so,  certain  occupations  or  indus- 
tries, or  even  classes  of  persons  may  be  selected  out  for 
special  regulation  or  for  the  enjoyment  of  special  privileges. 

Thus,  for  example,  the  practice  of  certain  professions 
may  be  limited  to  persons  of  the  male  sex,  or  to  those  of  a 
certain  age,  or  to  those  possessing  other  qualifications  that 
may  reasonably  be  held  to  indicate  a  fitness  for  the  pro- 
fession.14 


14  In  re  Lockwood,  154  U.  S.  116;  14  Sup.  Ct.  Rep.  1082;  38  L.  ed. 
929. 

23 


354  PRINCIPLES  OF  THE  CONSTITUTIONAL 

Thus  also,  as  proper  police  measures,  the  States  are  per- 
mitted to  impose  special  restrictions  and  liabilities  upon 
railway  corporations.  Special  modifications  of  the  com- 
mon-law doctrine  of  employers'  liability  with  reference 
to  them  have  been  upheld,  as  have  laws  placing  the  pre- 
sumption of  negligence  upon  them  when  cattle  have  been 
killed  by  their  trains,  and  laws  making  them  responsible 
for  fires  kindled  by  sparks  from  their  locomotives,  though 
they  may  have  taken  every  possible  precaution  to  avoid 
such  fires.15 

However,  in  Gulf,  etc.,  Ry.  Co.  v.  Ellis16  a  State  law  was 
held  void  which  imposed  an  attorney's  fee  in  addition  to 
costs  upon  railway  companies  which  should  fail  to  pay 
certain  claims  within  a  certain  time  after  presentation. 
Here  the  court  held  that  there  was  no  reasonable  relation 
between  the  burden  imposed  and  the  peculiar  character 
of  the  business  done. 

In  Missouri  v.  Lewis17  the  important  principle  was  laid 
down  that  the  equal  protection  clause  of  the  Fourteenth 
Amendment  does  not  prevent  the  application  by  a  State 
of  different  laws  and  different  systems  of  judicature,  to  its 
various  local  subdivisions. 

Equal  protection  requires  similar  but  not  the  same  privileges 
Where  similar  or  substantially  similar  conveniences  and 


15  St.  Louis,  etc.,  Co.  v.  Mathews,  165  U.  S.  1;  17  Sup.  Ct.  Rep. 
243;  41  L.  ed.  611;  Mo.  Pacific  Ry,  Co.  v,  Mackey,  127  U,  S.  205;  8 
Sup.  Ct.  Rep.  1161;  32  L.  ed.  107. 

16 165  U.  S.  150;  17  Sup.  Ct,  Rep.  255;  41  L.  ed.  666.  See,  also, 
Connolly  v.  Union  Sewer  Pipe  Co.,  184  U.  S.  540;  22  Sup.  Ct.  Rep. 
431;  46  L.  ed.  679;  Magoun  v.  Illinois  T.  &  S.  Bank,  170  U.  S.  283; 
18  Sup.  Ct.  Rep.  594;  42  L.  ed.  1037.  As  to  classifications  of  property 
for  purposes  of  taxation,  see  Bell's  Gap,  etc.,  v.  Pennsylvania,  134 
U.  S.  232;  10  Sup.  Ct.  Rep.  533;  33  L.  ed.  892;  Plumber  v.  Coler,  178 
U.  S.  115;  20  Sup.  Ct.  Rep.  829;  44  L.  ed.  998. 

17  101  U.  S.  22;  25  L.  ed.  989. 


LAW  OF  THE  UNITED  STATES  355 

comforts  arc  offered,  transportation  companies,  inns, 
theatres,  and  other  public  service  companies  may  by  law 
be  permitted  or  required  to  provide  separate  accommoda- 
tions to  the  different  races,  colored,  Mongolian  or  white. 

In  Plessy  v.  Ferguson18  the  court  say:  "The  object  of  the 
Amendment  was  undoubtedly  to  enforce  the  absolute 
equality  of  the  two  races  before  the  law;  and  in  the  nature 
of  things  it  could  not  have  been  intended  to  abolish  distinc- 
tions based  on  color,  or  to  enforce  social,  as  distinguished 
from  political  equality,  or  a  commingling  of  the  two  races 
upon  terms  unsatisfactory  to  either.  Laws  permitting, 
or  even  requiring  their  separation  where  they  are  liable 
to  be  brought  into  contact,  do  not  necessarily  imply  the 
inferiority  of  either  race  to  the  other,  and  have  been  gener- 
ally, if  not  universally,  recognized  as  within  the  compe- 
tency of  State  legislatures  in  the  exercise  of  their  police 
powers.  The  most  common  instance  of  this  is  connected 
with  the  establishment  of  separate  schools  for  white  and 
colored  children,  which  has  been  held  to  be  a  valid  exer- 
cise of  the  police  power;  even  by  courts  of  States  where  the 
political  rights  of  the  colored  race  have  been  longest  and 
most  earnestly  enforced." 

18 163  U.  S.  537;  16  Sup.  Ct.  Rep.  1138;  41  L.  ed.  256. 


CHAPTER  XXXVIII 

THE   OBLIGATION    OF   CONTRACTS 

The  obligation  of  contract  clause 

In  addition  to  being  prohibited  by  the  Fourteenth 
Amendment  from  depriving  any  person  of  life,  liberty  or 
property,  without  due  process  of  law,  the  States  are,  by 
§  X,  Art.  I  of  the  Constitution,  expressly  denied  the  power 
to  pass  any  law  impairing  the  obligation  of  contracts.  This 
provision,  the  general  intent  of  which  is  sufficiently  plain, 
has  in  its  application  given  rise  to  a  multitude  of  cases  re- 
quiring adjudication  in  the  courts.  The  purpose  of  this 
treatise  will  not  require  us,  however,  to  examine  these 
cases  in  detail.  Elsewhere  in  this  treatise,  certain  specific 
applications  of  the  prohibition  are  considered.1  In  this 
chapter  the  aim  will  be,  as  it  was  the  aim  in  the  chapter 
dealing  with  due  process  of  law,  to  ascertain  the  broad 
and  underlying  principles  which  have  governed  the  Federal 
courts  in  the  enforcement  of  the  prohibition. 

As  has  been  already  seen,  the  due  process  of  law  clause 
of  the  Fourteenth  Amendment  protects  the  individual 
in  his  right  to  enter  into  contracts  not  contrary  to  public 
policy.  The  provision  under  consideration  protects  from 
impairment  the  obligation  of  the  contract  when  entered 
into. 

So  far  as  this  provision  is  concerned,  a  State  law  di- 
vesting vested  rights  is  not  invalid,  unless  these  rights  are 


1  Chapter  XLV,  Suits  Against  the  States. 
356 


LAW  OF  THE  UNITED  STATES  357 

founded  upon  contracts,  and  the  effect  of  the  law  is  thus 
to  impair  or  nullify  their  force.2 

The  obligation  of  a  contract  is  not  impaired  by  a  law 
which  changes  the  legal  or  equitable  means  for  its  enforce- 
ment, existing  at  the  time  it  was  entered  into,  provided 
an  adequate  though  not  so  convenient  a  remedy  is  retained 
or  substituted  therefor.  The  principle  in  this  effect  is 
thus  similar  to  that  discussed  in  connection  with  the  due 
process  of  law  clause. 

Laws  which  operate  to  remedy  or  cure  technical  defects 
so  as  to  give  validity  to  otherwise  invalid  contracts  are 
constitutional,  their  effect  being  to  confirm  rather  than 
to  impair  the  obligation  of  contracts.3 

Elsewhere  in  this  treatise  it  is  pointed  out  that,  to  a 
certain  extent,  the  States'  right  of  taxation  may,  in  return 
for  a  substantial  consideration,  be  parted  with.  When 
thus  parted  with,  the  undertaking  not  to  exercise  the  right 
in  the  manner  specified  constitutes  a  contract,  the  obli- 
gation of  which  is  impaired  by  a  subsequent  law  author- 
izing its  exercise.  The  clause  thus  operates  as  a  limitation 
upon  the  taxing  power  of  the  States.  As  to  the  police 
power  of  the  State,  as  will  be  presently  shown,  the  rule 
is  otherwise.  No  State,  it  has  been1  held,  may  validly 
contract  not  to  exercise  in  the  future  a  power  which  is 
necessary  to  the  health,  safety,  comfort  or  morality  of  its 
citizens. 

The  contracts,  the  obligation  of  which  is  secured  from 
impairment  by  the  States,  include  agreements  between  the 
States  and  between  a  State  and  an  individual  or  individ- 
uals, as  well  as  those  between  individuals.  In  other  words, 
the  State  when  contracting  does  so  upon  the  same  terms 
as  a  private  individual  or  corporation,  and  may  not  plead 

2Satterleev.  Matthewson,  2  Pet.  380;  7  L.  ed.  458;  Bronson  v. 
Kinzie,  1  How.  311;  11  L.  ed.  143. 

3  Watson  v.  Mercer,  8  Pet.  88;  8  L.  ed.  876. 


358  PRINCIPLES  OF  THE  CONSTITUTIONAL 

its  sovereignty  as  justifying  subsequent  action  upon  its 
part  impairing  the  contractual  obligations  which  it  has 
assumed.  Its  non-amenability  to  suit  may,  however, 
enable  a  State  to  avoid  the  performance  of  an  agreement 
which  it  has  undertaken  to  perform.  This  branch  of  the 
subject  is  more  fully  discussed  in  the  chapter  of  this 
treatise  dealing  with  the  suability  of  the  State. 

What  constitutes  a  contract 

Election  or  appointment  to  a  public  office  does  not  create 
a  contract  between  the  State  and  the  one  so  appointed.4 

Marriage,  though  in  some  respects  properly  describable 
as  a  contract,  is  not  a  contract  in  the  sense  that  its  ob- 
ligation is  protected  from  impairment  by  the  State.5 

A  license  granted  by  a  State,  or  by  one  of  its  political 
sub-divisions,  is  not  a  contract  within  the  meaning  of  the 
prohibition.  It  is  nothing  more  than  the  grant  of  a  priv- 
ilege which,  so  far  as  the  Federal  prohibition  regarding 
the  impairment  of  the  obligation  of  contracts  is  concerned, 
may  be  revoked  at  any  time  at  the  will  of  the  grantor,  or 
its  continued  enjoyment  made  dependent  upon  new  and 
more  onerous  conditions.  This  principle  is  so  well  settled 
that  a  citation  of  authorities  is  scarcely  needed.  The  only 
difficulty  lies  in  determining  in  specific  cases  whether  the 
grant  of  authority  by  the  State  is  in  the  nature  of  a  license 
or  of  a  franchise,  which  is  to  be  construed  as  a  contract. 
However,  the  presumption  is  always  against  the  existence 
of  a  contract.  "A  contract  binding  the  State  is  only 
created  by  clear  language  and  not  to  be  extended  by  im- 
plication beyond  the  terms  of  the  statute. "  6 

Generally  speaking,  the  right  of  a  foreign  corporation 

4  Butler  v.  Pennsylvania,  10  How.  402;  13  L.  ed.  472. 

5  Maynard  v.  Hill,  125  U.  S.  190;  8  Sup.  Ct.  Rep.  723;  31  L.  ed.  654. 

6  Williams  v.  Wingo,  177  U.  S.  601;  20  Sup.  Ct.  Rep.  793;  44  L.  ed. 
905. 


LAW  OF  THE  UNITED  STATES  359 

to  do  business  within  a  State  is  in  the  nature  of  a  license 
which  the  State  may  revoke  or  modify  at  discretion. 
Where,  however,  the  foreign  corporation,  relying  upon  an 
existing  law  to  the  effect  that  certain  charges  will  not,  for  a 
certain  period  at  least,  be  imposed  upon  it,  has  entered 
the  State  for  the  transaction  of  business  there,  a  contract 
to  that  effect  is  held  to  exist  between  it  and  the  State,  the 
obligation  of  which  the  latter  may  not  impair.7 

Charters  of  public  corporations 

The  charters  of  public  corporations,  investing  them  with 
subordinate  legislative  and  other  governmental  powers 
are  not  contracts  within  the  meaning  of  the  obligation 
clause,  and,  so  far  as  the  Federal  Constitution  is  concerned, 
the  State  legislature  has,  with  reference  to  them,  unlimited 
powers  of  amendment  or  repeal.8 

Where,  however,  municipalities  or  other  subordinate 
political  corporations  have,  in  the  exercise  of  their  charter 
powers,  entered  into  contracts,  those  contracts  are  pro- 
tected from  subsequent  impairment  by  State  law.9  Any 
law  which  withdraws  or  limits  the  remedies  for  the  en- 
forcement of  such  municipal  contracts  is  void.10 

Generally  speaking,  also,  franchises  granted  by  munici- 
pal corporations,  if  authorized  by  their  charters,  are  con- 
tracts which,  under  the  authority  of  the  Dartmouth  College 
case,  presently  to  be  considered,  are  protected  against 
impairment. 

So,  also,  a  State  law  limiting  the  powers  of  taxation  of  a 
municipal  corporation,  whereby  its  ability  to  pay  its  debts 

7  Am.  Smelting  Co.  v.  Colorado,  204  U.  S.  103;  27  Sup.  Ct.  Rep. 
198;  51  L.  ed.  393. 

8  Laramie  Co.  v.  Albany  Co.,  92  U.  S.  307;  23  L.  ed.  552. 

9  New  Orleans  v.  New  Orleans  Waterworks  Co.,  142  U.  S.  79;  12 
Sup.  Ct.  Rep.  142;  35  L.  ed.  943. 

10  Mobile  v.  Watson,  116  U.  S.  289;  6  Sup.  Ct,  Rep.  398;  29  L.  ed. 
620. 


360  PRINCIPLES  OF  THE  CONSTITUTIONAL 

is  materially  lessened,  is  void  as  to  debts  created  prior 
thereto,  the  creditors  relying  upon  the  taxing  powers  of 
the  corporation  to  provide  the  funds  for  the  payment  of 
their  claims.11 

So,  also,  generally,  it  is  held  to  be  an  impairment  of  the 
obligation  of  contracts  entered  into  by  municipal  corpora- 
tions to  deprive  them  by  subsequent  State  legislation  of 
any  authority  whatsoever  whereby  they  may  be  rendered 
less  able  to  perform  their  agreements,  or  whereby  the  en- 
forcement by  creditors  of  their  claims  against  them  is 
rendered  more  difficult  or  less  certain. 

Charters  of  private  corporations  are  contracts:  The  Dart- 
mouth College  case 

In  1819  in  the  Dartmouth  College  case12  a  charter  of  a 
private  corporation  was  held  to  be  a  contract  between  the 
State  granting  it  and  the  corporation,  which  the  former 
might  not  impair  by  subsequent  legislation.  Prior  to 
this  decision  it  had  been  held  in  Fletcher  v.  Peck,13  decided 
in  1810,  that  the  obligation  clause  applied  to  executed  as 
well  as  to  executory  contracts,  and  to  contracts  entered 
into  by  the  States  as  well  as  to  those  entered  into  by  pri- 
vate individuals. 

This  fundamental  doctrine  that  the  charter  of  a  private 
corporation  is  a  contract  which,  under  the  obligation 
clause,  a  State  may  not  impair  by  legislation,  though  it 
has  been  much  criticized,  has  never  been  departed  from 
by  the  Supreme  Court.  In  practical  operation,  however, 
its  force  has  been  much  weakened  not  only  by  a  very  gen- 
eral practice  upon  the  parts  of  the  States,  when  granting 


11  Wolff  v.  New  Orleans,  103  U.  S.  358;  26  L.  ed.  395;  Seibert  v. 
Lewis,  122  U.  S.  284;  7  Sup.  Ct.  Rep.  1190;  30  L.  ed.  1161 ;  Louisiana 
v.  New  Orleans,  215  U.  S.  170,  30  Sup.  Ct.  Rep.  40;  54  L.  ed.  144. 

12  Dartmouth  College  v.  Woodward,  4  Wh.  518;  4  L.  ed.  629. 

13  6  Cr.  87;  3  L.  ed.  162. 


LAW  OF  THE  UNITED  STATES  361 

charters,  to  reserve  the  right  to  amend  or  revoke  them, 
but  by  later  decisions  of  the  courts  with  reference  to  the 
strictness  with  which  the  contractual  elements  of  corporate 
charters  are  construed,  and  to  the  power  of  the  States  in 
the  exercise  of  their  police  powers,  their  power  of  eminent 
domain,  and  their  authority  to  control  public  service  cor- 
porations, or  corporate  concerns  affected  with  a  public 
interest,  to  disregard  even  those  charter  rights  which  a 
strict  construction  shows  to  have  been  granted. 

Charter  grants  strictly  construed 

With  reference  to  the  strictness  with  which  charter 
grants  are  to  be  construed  the  courts  have  laid  down  the 
doctrine  that  the  State  is  to  be  held  to  have  granted  only 
such  powers  or  immunities  as  are  specifically  or  unequivo- 
cally stated,  or  as  are  necessarily  or  unavoidably  implied 
therein.  In  Northwestern  Fertilizing  Co.  v.  Hyde  Park14 
the  court  say:  "The  rule  of  construction  in  this  class  of 
cases  is  that  it  shall  be  most  strongly  against  the  corpora- 
tion. Every  reasonable  doubt  is  to  be  resolved  adversely. 
Nothing  is  to  be  taken  as  conceded  but  what  is  given  in 
unmistakable  terms,  or  by  an  implication  equally  clear. 
The  affirmative  must  be  shown.  Silence  is  negation,  and 
doubt  is  fatal  to  the  claim."15 

The  police  power  and  the  obligation  of  contracts 

The  extent  of  the  power  of  the  States  in  the  exercise  of 
their  police  powers  to  control  the  operations  of  domestic 

1497U.  S.  659;  24  L.  cd.  1036. 

15  See  also  Charles  River  Bridge  Co.  v.  Warren  Bridge  Co.,  11  Pet. 
420;  9  L.  ed.  773;  Knoxville  Water  Co.  v.  Knoxville,  200  U.  S.  22; 
26  Sup.  Ct.  Rep.  224;  50  L.  ed.  353.  As  to  the  power  of  the  States 
to  bind  themselves  by  charter  contracts  with  reference  to  the  reg- 
ulation of  the  rates  to  be  charged  by  public  service  corporations, 
see  Railway  Commission  Cases,  116  U.  S.  307;  6  Sup.  Ct.  Rep. 
334;  29  L.  ed.  636. 


362  PRINCIPLES  OF  THE  CONSTITUTIONAL 

corporations  as  well  as  the  strictness  with  which  the  char- 
ter grants  are  to  be  construed,  is  exhibited  in  the  cases  of 
the  Northwestern  Fertilizing  Co.  v.  Hyde  Park,16  decided 
in  1878,  and  of  Stone  v.  Mississippi,17  decided  in  1880,  the 
court,  in  the  latter  case  saying:  "The  question  is,  there- 
fore, directly  presented,  whether,  in  view  of  these  facts, 
the  legislature  of  a  State  can,  by  the  charter  of  a  lottery 
company,  defeat  the  will  of  the  people,  authoritatively 
expressed,  in  relation  to  the  further  continuance  of  such 
business  in  their  midst.  We  think  it  cannot.  No  legis- 
lature can  bargain  away  the  public  health  or  the  public 
morals.  The  people  themselves  cannot  do  it,  much  less 
their  servants.  The  supervision  of  both  these  subjects 
of  governmental  power  is  continuing  in  its  nature,  and  they 
are  to  be  dealt  with  as  the  special  exigencies  of  the  moment 
may  require  ....  The  contracts  which  the  Constitution 
protects  are  those  which  relate  to  property  rights,  not 
governmental." 

Tax  exemptions 

Arguing  from  the  fact  that  all  charter  contracts  are 
presumed  to  be  entered  into  with  a  knowledge  and  consent 
that  they  are,  in  their  performance,  subject  to  a  legitimate 
exercise  of  the  police  power,  the  doctrine  was  early  ad- 
vanced that  they  are  similarly  subject  to  the  State's  tax- 
ing power,  that,  in  other  words,  the  power  to  tax  is  as 
necessarily  and  inherently  a  sovereign  power  of  the  State 
and  may  not  be  bartered  away,  or  its  exercise  in  any  way 
estopped.  The  courts  have  held,  however,  that  this  is 
not  so.  In  many  cases,  though  not  without  hesitation  and 
against  minority  protests,  exemptions  from  taxation 
granted  by  the  State  in  return  for  some  conceived  sub- 
stantial quid  pro  quo  have  been  held  contracts  that  might 

1697U.  S.  659;  24  L.  ed.  1036. 
17 101  U.  S.  814;  25  L.  ed.  1079. 


LAW  OF  THE  UNITED  STATES  363 

not  hereafter  be  impaired.  Such  exemptions  are,  how- 
ever, construed,  it  need  not  be  said,  with  extreme  strict- 
ness.18 

When,  however,  the  States  and  their  political  sub- 
divisions have  endeavored  to  use  their  taxing  power  as  an 
indirect  means  of  avoiding  explicit  contract  obligations, 
the  Supreme  Court  has  not  hesitated  to  interpose  its  veto. 
Indeed,  the  court  has  said  that  attempted  taxation  has 
been  the  mode  most  frequently  employed  for  the  impair- 
ment of  contracts.19 

Construction  of  contracts 

Under  the  obligation  clause  no  general  power  is  given 
to  the  Federal  Supreme  Court  to  review  the  decisions  of 
State  courts  as  to  the  proper  construction  to  be  given  to 
the  terms  of  a  subsisting  contract,  or  as  to  the  validity  of  a 
contract.  In  other  words  no  claim  as  to  the  impairment 
of  the  obligation  of  a  contract  can  be  predicated  simply 
upon  the  assertion  that  a  State  court  has  erred  in  its 
judgment  as  to  the  meaning  or  validity  of  a  contract. 
It  is  thus  only  when  there  is  a  claim  that  there  has  been 
some  law  enacted  and  applied  which  operates  to  impair 
the  obligation  of  a  contract  previously  entered  into,  that 
the  Federal  question  may  be  raised  that  the  prohibition 
of  the  Constitution  has  been  violated. 

The  meaning  to  be  given  to  any  State  law  is  primarily 
to  be  determined  by  the  State  courts,  and,  so  long  as  only 
a  question  of  State  constitutional  law  is  concerned,  the 
meaning  thus  given  is  conclusive  upon  the  Federal  courts. 
Thus,  when  a  State  statute  is  alleged  to  impair  the  obli- 
gation of  a  contract  it  is  not  the  duty  of  the  Federal  Su- 

18  See  especially  the  language  of  the  court  in  Stone  v.  Mississippi, 
101  U.  S.  814;  25  L.  eel.  1079.     See,  also,  Chicago  Theological  Semi- 
nary v.  Illinois,  188  IT.  S.  662;  23  Sup.  Ct.  Rep.  386;  47  L.  ed.  641. 

19  Murray  v.  Charleston,  96  U.  S.  432;  24  L.  ed.  760, 


364  PRINCIPLES  OF  THE  CONSTITUTIONAL 

preme  Court  itself  to  construe  the  act  and  then  to  deter- 
mine whether,  as  thus  construed,  it  impairs  the  obligation 
of  a  contract;  rather,  its  duty  is  to  take  the  act  as  construed 
and  applied  by  the  courts  of  the  State,  and,  upon  that 
basis,  to  determine  whether  or  not  the  obligation  of  con- 
tracts is  impaired.  The  logic  of  this  doctrine  is  apparent. 
Whatever  may  be  the  literal  terms  of  a  State  law,  if,  in 
fact,  it  is  not  so  construed  by  the  State  authorities  as  to 
work  an  impairment  of  contracts  the  inhibition  of  the 
obligation  clause  cannot  be  said  to  be  violated.20 

The  rule  is,  however,  well  established  that  the  Federal 
Supreme  Court  will  determine  for  itself,  that  is,  by  its  own 
independent  judgment,  whether  or  not  that  which  is 
alleged  to  be  a  contract,  is  in  truth  a  contract  when  the 
claim  is  set  up  that  it  has  been  impaired  by  a  State  law. 
That  is  to  say,  the  Federal  tribunal  does  not  hold  itself 
bound  by  the  decision  of  a  State  court  which  escapes  from 
the  application  of  the  obligation  clause  by  holding  that 
the  contract,  the  impairment  of  which  is  alleged,  is  not, 
in  fact  a  contract.21 

This  doctrine  is,  of  course,  applicable  not  only  to  the 
construction  of  instruments  which,  it  is  claimed,  constitute 
contracts  between  individuals,  but  also  to  State  laws 
which,  it  is  alleged,  amount  to  contracts  on  the  part  of  the 
States.  There  has  been  no  serious  denial  of  this  from  the 
time  of  the  early  case  of  Fletcher  v.  Peck,  in  which  it  was 
held  that  the  inhibition  of  the  obligation  clause  applies 
as  well  to  contracts  on  the  part  of  the  States  as  to  those 
between  private  individuals. 

Furthermore,  the  Supreme  Court  will  exercise  its  own 
independent  judgment  as  to  the  constitutionality  of  a 
State  law  as  tested  by  the  State  constitution,  when  the 

20  Lehigh  Water  Co..*;.  Easton,  121  U.  S.  388;  7  Sup.  Ct.  Rep.  916; 
30  L.  ed.  1059. 

21  Jefferson  Branch  Bank  v.  Skelly,  1  Black.  436;  17  L.  ed.  173. 


LAW  OF  THE  UNITED  STATES  365 

law  is  one  which  in  itself  constitutes  a  contract  on  the  part 
of  the  State  or  supplies  the  legal  basis  for  the  contract 
which,  it  is  alleged,  is  impaired  by  a  later  law.22 

Force  of  State  decisions 

In  passing  upon  decisions  of  State  courts  overruling 
their  own  prior  decisions  and  thereby  holding  invalid  con- 
tracts entered  into  in  reliance  upon  such  prior  decisions, 
there  is  a  sharp  distinction  drawn  by  the  Supreme  Court 
between  those  cases  in  which  the  cause  comes  before  the 
Federal  courts  because  of  the  citizenship  of  the  parties 
thereto,  and  thence  by  appeal  to  the  Supreme  Court,  and 
those  coming  to  it  by  writ  of  error  to  the  highest  State 
courts. 

In  the  latter  class  of  cases  the  only  ground  of  Federal 
jurisdiction  is  that  the  obligation  of  a  contract  has  been 
impaired;  that,  in  other  words,  a  right  guaranteed  by  the 
Federal  Constitution  has  been  violated.  In  McCullough 
v.  Virginia,23  as  in  an  unbroken  line  of  previous  cases,  the 
members  of  the  Supreme  Court  have  all  agreed  that  Fed- 
eral jurisdiction  exists  only  in  case  the  decision  of  the  State 
court  appealed  from  has  given  effect  to  a  State  legislative 
act  impairing  a  contract  previously  entered  into.24 

In  those  cases  coming  to  the  Federal  Supreme  Court  by 
way  of  appeal  from  a  lower  Federal  court,  however,  there 
is  no  question  of  Federal  jurisdiction,  and  in  them,  the 
Federal  courts  determine  for  themselves  which,  if  any,  of 
the  decisions  of  the  State  courts  dealing  with  the  State 
laws  or  with  principles  involved  they  will  follow. 

22  State  Bank  v.  Knoop,  16  How.  369;  14  L.  ed.  977;  Ohio  Life  Ins. 
Co.  v.  Debolt,  16  How.  416;  14  L.  ed.  997;  McGahey  v.  Virginia,  135 
U.  S.  662;  10  Sup.  Ct.  Rep.  972;  34  L.  ed.  304. 

23 172  U.  S.  102;  19  Sup.  Ct.  Rep.  134;  43  L.  ed.  382. 

24  In  McCullough  v.  Virginia  there  was  disagreement  as  to  whether 
or  not  the  decision  of  the  State  court  had  given  effect  to  a  later 
statute, 


366  PRINCIPLES  OF  THE  CONSTITUTIONAL 

In  this  class  of  cases,  the  Federal  jurisdiction  of  which 
is  based  upon  the  diversity  of  citizenship  of  the  parties 
thereto,  the  doctrine  is  well  established  that  where  a  State 
court  has  reversed  its  ruling  as  to  the  State  law  governing 
a  case,  the  Federal  courts  will  not  follow  the  later  decision, 
when  to  do  so  will  make  it  necessary  to  hold  void  or  to 
impair  the  obligation  of  contracts  previously  entered  into. 
In  other  words,  the  first  construction  is  treated  as  though 
it  becomes  a  part  of  the  law  or  constitutional  provision, 
and  the  latter  and  differing  construction  as  a  law  in  amend- 
ment or  appeal  thereof.25  It  may,  however,  be  observed 
that  the  courts  would  have  found  themselves  in  fewer 
logical  and  constitutional  difficulties  if  they  had  decided 
these  cases  without  any  reference  to  the  obligation  of 
contracts  clause,  and  solely  upon  the  ground  that  they 
had  the  power,  in  suits  between  citizens  of  different  States, 
to  exercise  an  independent  judgment  as  to  when  it  is 
proper  for  them  to  follow  the  decisions  of  the  State  courts 
with  reference  to  the  construction  of  State  laws.  This 
subject  is  more  fully  treated  in  a  later  chapter. 

Originally  the  Supreme  Court  went  only  so  far  as  to 
protect  a  contract  entered  into  under  a  law  which  had 
previously  been  held  valid  by  the  State  courts,  as  against 
a  later  decision  holding  the  law  unconstitutional  and  void. 
Of  late,  however,  the  court  has  taken  the  further  step  of 
protecting  "contracts  entered  into  under  a  law  before  its 
constitutionality  has  been  upheld  in  the  highest  courts  of 
the  State,  the  argument  being  that  a  State  legislative  act 
is,  even  in  advance  of  judicial  affirmation,  presumptively 
valid,  and,  therefore,  a  later  ruling  of  the  court  to  the  effect 
that  the  law  is  invalid,  operates  to  impair  or  destroy  the 
obligation  of  the  contracts  which  those  entering  into  them 


25  Burgess  v.  Seligman,  107  U.  S.  20;  2  Sup.  Ct.  Rep.  10;  27  L.  ed. 
359;  Gelpcke  v.  Dubuque,  1  Wall.  175;  17  L.  ed.  520. 


LAW  OF  THE  UNITED  STATES  367 

have  a  right,  at  the  time,  to  believe  are  legally  enforceable 
agreements. 

In  these  cases  it  is  to  be  observed  that  the  doctrine  of 
the  Supreme  Court  is  not  only  to  hold  that  the  obligation 
clause  warrants  a  refusal  upon  the  part  of  the  Federal 
courts  to  follow  the  constructions  given  by  State  courts 
to  their  own  State  laws,  but  also  to  hold  that  a  judicial 
decision  is  a  "law"  within  the  meaning  of  the  provision 
of  the  Federal  Constitution  that  no  State  shall  "pass  any 
law  impairing  the  obligation  of  contracts."26 

26  See  especially  Great  Southern  Fire  Proof  Hotel  Co.  v.  Jones, 
193  U.  S.  532;  24  Sup.  Ct.  Rep.  576;  48  L.  ed.  778,  in  which  the 
authorities  are  carefully  reviewed. 


CHAPTER  XXXIX 

CONSTITUTIONAL   LIMITATIONS   UPON   THE   TAXING   POWERS 
OF    THE    STATES 

Constitutional  provisions 

The  Constitution  lays  but  one  important  express  limita- 
tion upon  the  States  with  reference  to  the  exercise  of  their 
taxing  powers.  This  is  that  "no  State  shall,  without  the 
consent  of  Congress,  lay  any  imposts  or  duties  on  imports 
or  exports,  except  what  may  be  absolutely  necessary  for 
executing  the  inspection  laws;  and  the  net  produce  of  all 
duties  and  imposts,  laid  by  any  State  on  imports  or  ex- 
ports, shall  be  for  the  use  of  the  treasury  of  the  United 
States,  and  all  such  laws  shall  be  subject  to  the  revision 
and  control  of  the  Congress." 

But  other  clauses  of  the  Constitution  restricting  gener- 
ally the  powers  of  the  States  operate  to  limit  their  powers 
of  taxation.  Thus,  for  example,  influential  in  this  respect 
are  the  provisions  that  no  State  shall  deprive  any  person 
of  property  without  due  process  of  law  or  deny  to  any  per- 
son within  its  jurisdiction  the  equal  protection  of  the  laws; 
that  no  State  shall  pass  any  law  impairing  the  obligation 
of  contracts;  and  that  "the  citizens  of  each  State  shall  be 
entitled  to  all  privileges  and  immunities  of  citizens  in  the 
several  States."  Also  there  are  the  implied  limitations 
that  no  State  shall  so  use  its  taxing  powers  as  to  interfere 
with  the  operation  of  Federal  agencies;  and  that,  being 
unable  to  give  an  extra-territorial  effect  to  its  laws,  no 
State  may  tax  property  not  within  its  jurisdiction. 

The  limitations  imposed  upon  the  taxing  powers  of  the 
States  by  the  "comity"  clause  are  elsewhere  discussed 
368 


LAW  OF  THE  UNITED  STATES  369 

in  this  treatise.  It  may,  however,  be  here  said  that,  in 
general,  the  clause  operates  to  prevent  a  State  from  bur- 
dening citizens  of  other  States  within  its  borders  with 
heavier  taxes  than  those  laid  upon  its  own  citizens.  This 
applies  not  only  to  the  property  of  non-citizens,  but  to  the 
business  that  they  may  carry  on. 

State  taxation  of  Federal  governmental  agencies 

The  successful  maintenance  of  a  Federal  government, 
under  any  circumstances  a  most  difficult  task,  is  an  espe- 
cially difficult  one  in  the  United  States  where  Federal  func- 
tions are  exclusively  performed  by  Federal  organs  and 
agencies,  and  State  functions  by  State  organs  and  agents. 
This  has  necessitated  the  maintenance  of  a  complete 
machinery  of  government  for  the  United  States,  and  sim- 
ilarly, a  complete  political  organization  for  each  of  the 
member  States  of  the  Union.  This  arrangement  carries 
with  it  the  general  doctrine  that  the  States  may  not  in  any 
wise  interfere  with  the  operation  of  a  Federal  organ  or 
with  the  exercise  by  a  Federal  agent  of  his  official  functions; 
and  that,  conversely,  the  Federal  Government  may  not 
interfere  with  the  operation  of  a  State  agency  or  the  official 
actions  of  State  officials  when  acting  within  the  constitu- 
tional limits  reserved  to  the  States.  Illustrations  of  these 
general  principles  will  appear  throughout  this  treatise. 
Their  scope  and  significance  are,  however,  especially  ex- 
hibited in  their  application  to  the  Federal  and  State  taxing 
power,  and  to  a  discussion  of  this  special  phase  of  the  subject 
this  and  the  next  succeeding  paragraphs  will  be  devoted. 
That  a  State  may  not  in  the  exercise  of  its  reserved 
powers,  interfere  with  a  Federal  Governmental  agency 
was  settled  once  and  for  all  by  the  decisions  of  the  Supreme 
Court  in  McCulloch  v.  Maryland.1  This  case  was  all  the 

1  4  Wh.  316;  4  L.  ed.  579.     See,  also,  Osborn  v.  Bank  of  United 
States,  9  Wh.  738;  6  L.  ed.  204. 
24 


370  PRINCIPLES  OF  THE  CONSTITUTIONAL 

stronger  in  that  the  Federal  agency,  with  whose  activity 
it  was  alleged  that  Maryland  had  attempted  to  interfere  by 
taxing  it,  was  an  agency  neither  essential  to  the  National 
Government  nor  expressly  provided  for  by  the  Constitu- 
tion. The  power  to  establish  a  National  Bank  was  at 
most  only  an  implied  one,  and,  in  fact,  its  constitutionality 
was  very  widely  denied,  and,  years  after  this,  a  bill  pro- 
viding for  the  establishment  by  the  National  Government 
of  a  similar  institution  was  vetoed  by  President  Jackson 
upon  the  ground  of  its  unconstitutionality.  But  in  this 
case  Maryland  had  not  only  denied  the  constitutionality 
of  the  bank  but  had  taken  the  position  that,  even  were  it 
constitutional,  she  had,  under  the  general  power  reserved 
to  -her  of  taxing  all  occupations  carried  on  within  her  terri- 
torial limits,  the  right  to  tax  such  branches  of  the  bank 
as  might  be  located  within  her  borders.  Thus,  in  this 
case,  the  State  of  Maryland  did  not  claim  that  she  might 
directly  and  deliberately  interfere  with  a  Federal  law,  but 
that  the  exercise  by  her  of  an  otherwise  legitimate  author- 
ity could  not  be  declared  unconstitutional  simply  upon  the 
ground  that,  indirectly,  or  by  remote  possibility,  its  effect 
was,  or  might  be,  to  interfere  with  the  exercise  of  a  legiti- 
mate Federal  power.  In  other  words,  Maryland  took  the 
ground  that,  while  acting  within  their  reserved  spheres 
of  authority,  the  States  were  as  independent  and  sovereign 
as  was  the  Union  while  operating  within  its  constitutional 
sphere;  and  that,  therefore,  their  direct  interests,  within 
such  spheres,  might  not  be  subordinated  to  the  merely 
indirect  interests  of  the  Union.  This  position  the  Su- 
preme Court  declared  an  invalid  one. 

Property  of  Federal  agencies  may  be  taxed 

In  McCulloch  v.  Maryland  and  Osborn  v.  Bank  of  Ohio 
the  States  had  attempted  to  levy  a  tax,  in  the  nature  of  a 
franchise  tax,  upon  the  operations  of  the  Federal  bank. 


LAW  OF  THE  UNITED  STATES  371 

In  the  Maryland  case  Chief  Justice  Marshall  said:  "The 
opinion  does  not  deprive  the  State  of  any  resources  which 
it  originally  possessed.  It  does  not  extend  to  the  tax 
paid  by  the  real  property  of  a  bank,  in  common  with  the 
other  real  property  within  the  State,  nor  to  a  tax  imposed 
on  the  interest  which  the  citizens  of  Maryland  may  hold 
in  this  institution,  in  common  with  other  property  of  the 
same  description  throughout  the  State." 

This  dictum  of  Marshall  received  judicial  application 
in  Thomson  v.  Union  Pacific  R.  Co.,2  in  which  it  was  held, 
that  in  the  absence  of  any  legislation  of  Congress  direct- 
ing otherwise,  the  property  of  a  railroad  company,  char- 
tered by  a  State,  but  performing  Federal  services,  might 
be  taxed  by  the  State.  Chief  Justice  Chase  speaking  for 
a  unanimous  court  said:  "We  think  there  is  a  clear  dis- 
tinction between  the  means  employed  by  the  government 
and  the  property  of  agents  employed  by  the  government. 
Taxation  of  the  agency  is  taxation  of  the  means;  taxation 
of  the  property  of  the  agent  is  not  always,  or  generally, 
taxation  of  the  means." 

In  Thomson  v.  Union  Pacific  R.  Co.,  the  railroad  com- 
pany concerned,  although  performing  Federal  services, 
was  chartered  by  the  State.  In  Union  Pacific  R.  Co.  v. 
Peniston,3  the  same  doctrine  was  applied  to  a  company 
chartered  by  Congress.  This  fact,  it  was  held,  did  not  take 
the  case  out  of  the  rule  laid  down  in  earlier  cases. 

In  Owensboro  National  Bank  v.  City  of  Owensboro  4  it 
was  held  that  the  property  of  national  banks,  organized 
under  a  Federal  statute,  is  absolutely  exempt  from  State 
taxation  except  in  so  far  as  Congress  has  expressly  waived 
this  immunity.  This  doctrine  would  be  in  opposition  to 

2  9  Wall.  579;  19  L.  ed.  792. 

3  18  Wall.  5;  21  L.  ed.  787.    See,  also,  National  Bank  v.  Common- 
wealth, 9  Wall.  353;  19  L.  ed.  701. 

4 173  U.  S.  664;  19  Sup.  Ct.  Rep.  537;  43  L.  ed.  850. 


372  PRINCIPLES  OF  THE  CONSTITUTIONAL 

that  declared  in  Union  Pacific  R.  Co.  v.  Peniston  but  for 
the  distinction  between  the  national  banks  as,  in  them- 
selves, governmental  instrumentalities  of  the  United 
States,  and  the  railroads  which  are  primarily  private  en- 
terprises, but  performing  inter  alia  Federal  services. 

A  franchise  to  be  or  to  act  as  a  corporation  granted  by  a 
State,  may  be  taxed  by  a  State  as  a  piece  of  intangible 
property.  But  franchises  or  other  rights  derived  from  the 
Federal  Government  may  not  be  taxed  by  the  States  nor 
any  hindrances  placed  by  the  States  upon  their  exercise.5 

In  conformity  with  the  foregoing  doctrine  it  has  been 
held  that  while  the  States  may  tax  the  capital  employed 
in  the  manufacture  of  copyrighted  or  patented  articles, 
as  well  as  the  tangible  property  embodied  in  these  articles, 
they  may  not  exact  a  fee  as  a  condition  precedent  to  the 
exercise  of  these  federally  granted  rights,  nor  can  they  tax 
the  intangible  rights  themselves  as  property. 

Of  course  no  State  may,  in  the  exercise  of  its  police  or 
other  powers,  in  any  way  discriminate  against  patented 
articles.6 

Where,  by  Federal  license,  an  occupation  has  been 
authorized  by  the  United  States,  enjoyment  and  em- 
ployment of  the  license  may  not  be  restricted  by  a 
State.7 

That  the  salary  or  other  emoluments  of  office  of  Federal 
officials  may  not  be  taxed  by  the  States  has  not  been 


5  California  v.  Central  Pacific  Ry.  Co.,  127  U.  S.  1;  8  Sup.  Ct. 
Rep.  1073;  32  L.  ed.  150. 

6  Crown  Cork  &  Seal  Co.  v.  Maryland,  87  Md.  687;  People  v. 
Roberts,  159  N.  Y.  70.    See,  also,  Webber  v.  Virginia,  103  U.  S.  334; 
26  L.  ed.  565;  Allen  v.  Riley,  203  U.  S.  347;  27  Sup;  Ct.  Rep.  95;  51 
L.  ed.  216;  and  Ozan  Lumber  Co.  v.  Union  Co.  Nat*  Bank,  145  Fed. 
344. 

7  Moran  v.  New  Orleans,  112  U.  S.  69;  5  Sup.  Ct.  Rep.  38;  28  L. 
ed.  653;  Harman  v.  Chicago,  147  U.  S.  396;  13  Sup.  Ct.  Rep.  306; 
37  L.  ed.  216. 


LAW  OF  THE  UNITED  STATES  373 

questioned,  since  the  doctrine  was  first  declared  in  Dob- 
bins v.  Commissioners.8 

State  taxation  of  Federal  property 

The  principle  that  property  belonging  to  the  United 
States  is  not  taxable  by  the  States  in  which  it  is  situated 
did  not  receive  final  judicial  affirmation  until  1885  in  Van 
Brocklin  v.  Tennessee.9  Prior  to  this  decision  it  had  been 
quite  generally  taken  for  granted  that  Federal  property 
was  thus  exempt  from  State  taxation,  but  in  a  number  of 
cases  Congress  would  seem  to  have  implied  that  it  was  not 
confident  upon  this  point  since  it  incorporated  into  en- 
abling acts  for  the  admission  of  territories  into  the  Union 
as  States,  the  requirement  that  after  admission  the  prop- 
erty of  the  United  States  should  be  exempt  from  State 
taxation.  The  effect  of  the  decision  of  Van  Brocklin  v. 
Tennessee  was,  of  course,  to  hold  that  these  provisions 
were  declaratory  merely,  and,  therefore,  superfluous. 
The  fact  that  the  lands  concerned  in  this  Tennessee  case 
were  acquired  by  the  United  States  through  sales  for  non- 
payment of  direct  taxes  levied  by  an  act  of  Congress  and 
not  expressly  ceded  by  the  States,  was  held  immaterial. 

In  Wisconsin  C.  R.  Co.  v.  Price  County  10  the  doctrine 
of  Van  Brocklin  v.  Tennessee  was  reaffirmed  and  broad- 
ened so  as  to  include  not  only  taxation  by  the  State  but 
by  any  of  its  administrative  subdivisions. 

State  taxation  of  Federal  securities 

United  States  securities,  it  has  been  held,  may  not  be 
taxed  by  the  States  for  the  reason  that  to  admit  this  power 
would  give  to  the  State  the  authority  to  impair  the  bor- 
rowing power  of  the  National  Government.  This  was 

8 16  Pet.  435;  10  L.  ed.  1022. 

9 117  U.  S.  151;  6  Sup.  Ct.  Rep.  670;  29  L.  ed.  845. 

10 133  U.  S.  496;  10  Sup.  Ct.  Rep.  341;  33  L.  ed.  687. 


'374  PRINCIPLES  OF  THE  CONSTITUTIONAL 

early  decided  in  Weston  v.  Charleston.11  "The  tax  on 
government  stock,"  said  Marshall  who  rendered  the  opin- 
ion in  the  case,  "is  thought  by  this  court  to  be  a  tax  on  the 
contract,  a  tax  on  the  power  to  borrow  money  on  the  credit 
of  the  United  States,  and  consequently  to  be  repugnant 
to  the  Constitution." 

In  Banks  v.  The  Mayor12  the  attempt  to  make  a  dis- 
tinction between  the  bonds  of  the  government  issued  for 
loans  of  money  and  certificates  of  indebtedness  given  in 
payment  for  supplies  purchased,  and  to  hold  the  latter 
subject  to  taxation  by  the  States,  was  defeated  by  the 
court.  So  also  in  Bank  v.  Supervisors,13  United  States 
notes  issued  under  the  acts  of  1862  and  1863  were  held 
exempt  from  State  taxation. 

In  Bank  of  Commerce  v.  Commissioners14  stock  of  the 
United  States  constituting  a  part  or  the  whole  of  the  capi- 
tal stock  of  a  State  bank  was  held  not  subject  to  State  taxa- 
tion, the  fact  that  the  tax  was  on  the  aggregate  of  the  tax- 
payer's property  and  not  upon  the  stock  by  name  being 
held  immaterial.  So  also  in  the  Bank  Tax  Case 15  a  State 
tax  on  a  valuation  equal  to  the  amount  of  capital  stock 
paid  in,  and  surplus,  of  a  State  bank  was  held  to  be  a  tax  on 
the  property  of  the  institution  and,  therefore,  invalid,  in  so 
far  as  that  property  consisted  of  stocks  of  the  United  States. 

In  Home  Savings  Bank  v.  Des  Moines 16  it  was  held  that 
a  State  statute  directing  that  shares  of  stock  of  State  banks 
should  be  assessed  to  such  banks,  and  not  to  individual 
shareholders,  operated  as  a  tax  on  the  property  of  the  bank 
and,  therefore,  in  so  far  as  such  property  represented 


11  2  Pet.  449;  7  L.  ed.  481. 

12  7  Wall.  16;  19  L.  ed.  57. 

13  7  Wall.  26;  19  L.  ed.  60. 

14  2  Black.  620;  17  L.  ed.  451. 

15  2  Wall.  200;  17  L.  ed.  793. 

16  205  U.  S.  503;  27  Sup.  Ct,  Rep.  571;  51  L.  ed.  901. 


LAW  OF  THE  UNITED  STATES       .  375 

Federal  securities,  violated  the  immunity  of  such  securities 
from  State  taxation. 

Where,  however,  the  State  tax  may  properly  be  held  to 
be  a  franchise  tax  upon  the  State  institution,  it  has  been 
held  valid  notwithstanding  the  fact  that  United  States 
stock  constitutes  a  part  of  the  assets  of  the  institution.17 
So  also  in  Home  Insurance  Co.  v.  New  York 18  it  was  held 
that  a  State  statute  imposing  a  tax  upon  the  " corporate 
franchise  or  business"  of  a  company,  and  making  reference 
to  its  capital  stock  and  dividends  only  for  the  purpose  of 
determining  the  amount  of  the  tax,  was  not  invalid  as 
levying  a  tax  on  the  capital  stock  or  property  of  the  com- 
pany, but  upon  its  corporate  franchise,  and,  therefore,  not 
subject  to  the  objection  that  it  imposed  a  tax  on  United 
States  securities  constituting  a  portion  of  the  investments 
of  the  company.  A  tax  levied  upon  shares  of  stock  in 
the  hands  of  their  holders  it  has  been  uniformly  held  is  not 
equivalent  to  a  tax  upon  the  company,  but  upon  its  cor- 
porate franchise,  and,  therefore,  it  has  been  consistently 
held  that  the  States  may  tax  the  shares  of  a  national  bank 
in  the  hands  of  the  shareholders,  or,  similarly,  the  stock 
of  corporations  whose  investments  consist  wholly  or  in 
part  of  Federal  securities.19 

Incomes  derived  from  interest  on  Federal  securities, 
are  exempt  from  State  taxation.  This  was  held  with 
reference  to  the  exemption  from  Federal  taxation  of  in- 
comes derived  from  State  securities,  and  the  same  reason- 
ing would  of  course  exclude  from  State  taxation  incomes 
derived  from  Federal  securities.20 


17  Society  for  Savings  v.  Coite,  6  Wall.  611;  18  L.  ed.  907. 
18 134  U.  S.  594;  10  Sup.  Ct.  Rep.  593;  33  L.  ed.  1025. 

19  Van  Allen  v.  Assessors,  3  Wall.  573;  18  L.  ed.  229;  Palmer  v. 
McMahon,  133  U.  S.  660;  10  Sup.  Ct.  Rep.  324;  33  L.  ed.  772. 

20  Pollock  v.  Farmers'  L.  &  T.  Co.,  157  U.  S.  429;  15  Sup.  Ct.  Rep. 
673;  39  L.  ed.  759. 


376  PRINCIPLES  OF  THE  CONSTITUTIONAL 

'  Congress,  by  an  act  approved  August  13,  1894,  has  pro- 
vided that  "circulating  notes  of  national  banking  associa- 
tions and  United  States  legal  tender  notes,  and  other  notes 
and  certificates  of  the  United  States,  payable  on  demand, 
and  circulating,  or  intended  to  circulate,  as  currency  .... 
shall  be  subject  to  [State]  taxation  as  money  on  hand  or  on 
deposit."21 

Bequests  to  the  United  States  may  be  subjected  to 
State  inheritance  taxes,  the  courts,  both  State  and  Fed- 
eral, holding  the  tax  to  be  not  upon  the  property  be- 
queathed, but  upon  its  transmission  by  will  or  by  descent. 
"The  legacy  becomes  the  property  of  the  United  States 
only  after  it  has  suffered  a  diminution  to  the  amount  of 
the  tax,  and  it  is  only  upon  this  condition  that  the  State 
legislature  assents  to  a  bequest  of  it." 

Further,  in  Plumber  v.  Coler,23  it  was  held  that  a  State 
inheritance  tax  might  be  collected  upon  a  bequest  con- 
sisting of  United  States  bonds  issued  under  an  act  of 
Congress  especially  declaring  them  to  be  exempt  from  State 
taxation  in  any  form.  In  Murdock  v.  Ward  it  was  held 
that  a  similar  bequest  of  Federal  securities  was  not  ex- 
empt from  the  inheritance  tax  imposed  by  the  War  Rev- 
enue Act  of  Congress  of  1898. 

By  act  of  June  3,  1864,  certain  powers  of  taxation  with 
reference  to  national  banks  were  given  by  Congress  to  the 
States.  This  permission  now  constituting  §  5219  of  the 
Revised  Statutes  measures  the  entire  extent  of  the  State's 
power  of  taxation  with  reference  to  the  national  banks. 
This  Federal  act  has  been  construed  to  operate  not  as  a 


21  For  construction  of  this  permission,  see  Hibernia  Savings  & 
Loan  Soc.  v.  San  Francisco,  200  U.  S.  310;  26  Sup.  Ct.  Rep.  265;  50 
L.  ed.  495. 

22  United  States  v,  Perkins,  163  U.  S.  625;  16  Sup.  Ct.  Rep.  1073; 
41  L.  ed.  287. 

23  178  U.  S.  115;  20  Sup.  Ct.  Rep.  829;  44  L.  ed.  998. 


LAW  OF  THE  UNITED  STATES  377 

grant  by  the  United  States  to  the  States  of  a  power  not 
previously  possessed,  but  as  a  removal  by  Congress  of  a 
hindrance  to  the  exercise  by  the  States  of  a  power  inherent 
in  them.24 

Federal  taxation  of  State  agencies 

Correlative  to  the  implied  limitation  upon  the  States 
with  respect  to  interference  with  Federal  agencies  of 
government,  is  the  implied  obligation  upon  the  Federal 
Government  not  to  interfere  with  the  operation  of  the 
governmental  agencies  of  the  States.  This  limitation 
upon  the  Federal  Government  is  not,  however,  so  strictly 
construed  as  that  laid  upon  the  States.  Here,  as  in  every 
other  case,  where  a  conflict  arises  between  the  exercise 
of  Federal  powers,  and  of  State  powers,  the  State  must 
yield,  although,  except  for  this  opposition,  it  would  be 
within  its  constitutional  rights.  Thus  franchises  granted 
to  interstate  railway  companies  by  the  United  States 
are  not  taxable  by  the  States.25  But  in  Veazie  Bank  v. 
Fenno  26  the  Federal  Government,  in  the  exercise  of  its 
constitutional  powers  to  control  the  currency,  was  per- 
mitted to  tax  out  of  existence  the  notes  of  State  banks,  al- 
though it  was  not  denied  that  the  States  had  the  consti- 
tutional power  to  charter  the  banks. 

In  this  Veazie  Bank  Case  it  was  argued  on  behalf  of  the 
State  that  the  Federal  tax  in  question  was,  in  effect,  a  tax 
on  a  franchise  granted  by  the  State,  and  as  such  uncon- 
stitutional. The  court  held  that,  in  fact,  the  tax  was  not 


24  Van  Allen  v.  Assessors,  3  Wall.  573;  18  L.  ed.  229. 

25  Calif,  v.  Pac.  R.  R.  Co.,  127  U.  S.  1;  8  Sup.  Ct.  Rep.  1073;  32 
L.  ed.  150. 

26  8  Wall.  533;  19  L.  ed.  482.    In  Ex  parte  Rapier,  143  U.  S.  110; 
12  Sup.  Ct.  Rep.  374;  36  L.  ed.  93,  it  was  held  that  the  fact  that  a 
lottery  company  was  chartered  by  a  State  did  not  operate  to  prevent 
the  Federal  Government  from  excluding  its  tickets  from  the  mails. 


378  PRINCIPLES  OF  THE  CONSTITUTIONAL 

upon  the  franchise  of  the  bank,  but  declared,  obiter.  "We 
do  not  say  that  there  may  not  be  such  a  tax.  It  may  be 
admitted  that  the  reserved  rights  of  the  States,  such  as  the 
rights  to  pass  laws,  to  give  effect  to  laws  through  executive 
action,  to  administer  justice  through  the  courts,  and  to 
employ  all  necessary  agencies  for  legitimate  purposes  of 
State  government,  are  not  proper  subjects  of  the  taxing 
power  of  Congress.  But  it  cannot  be  admitted  that 
franchises  granted  by  a  State  are  necessarily  exempt  from 
taxation;  for  franchises  are  property,  often  very  valuable 
and  productive  property,  and  when  not  conferred  for  the 
purpose  of  giving  effect  to  some  reserved  power  of  a  State, 
seems  to  be  as  properly  objects  of  taxation  as  any  other 
property." 

Finally,  in  the  Federal  Corporation  Tax  Case  of  Flint 
v.  Tracy  Co.,27  the  court  directly  applied  this  obiter  doc- 
trine with  reference  to  an  excise  tax  levied  upon  all  cor- 
porations with  respect  to  the  carrying  on  or  doing  business 
by  them.  After  a  review  of  earlier  adjudications  the  court 
say:  "We  therefore  reach  the  conclusion  that  the  mere  fact 
thajt  the  business  taxed  is  done  in  pursuance  of  authority 
granted  by  a  State  in  the  creation  of  private  corporations 
does  not  exempt  it  from  the  exercise  of  Federal  authority 
to  levy  excise  taxes  upon  such  privilege." 

The  Supreme  Court  has  not,  however,  permitted  this 
principle  of  the  supremacy  of  the  Federal  Government  to 
authorize  the  National  Government,  by  taxation  or  other- 
wise, to  interfere  with  the  States  in  the  exercise  of  their 
governmental  rights,  except  in  so  far  as  such  interference 
is  necessary  for  the  exercise  of  a  Federal  power.28 

In  the  case  of  Collector  v.  Day  w  it  was  held  that  the 


27  220  U.  S.  107;  31  Sup.  Ct.  Rep.  342. 

28  Lane  Co.  v.  Oregon,  7  Wall.  71;  19  L.  ed.  101. 
29 11  Wall.  113;  20  L.  ed.  122. 


LAW  OF  THE  UNITED  STATES  379 

Federal  Government  could  not  levy  an  income  tax  upon 
the  salaries  of  State  officials. 

The  court  go  on  to  point  out  that  the  alleged  Federal 
right  that  was  involved,  so  far  from  being  similar  to  that 
sustained  in  Veazie  Bank  v.  Fenno,  was  included  within 
that  sphere  of  State  interest  which  the  court  in  that  case 
expressly  declared  to  be  beyond  the  taxing  power  of  the 
Federal  Government. 

In  Mercantile  Nat.  Bank  v.  New  York30  it  was  decided 
that  the  United  States  might  not  tax  bonds  issued  by  a 
State  or  by  one  of  its  municipal  bodies,  under  its  authority, 
and  held  by  private  corporations. 

In  the  Income  Tax  case31  it  was  held  that  a  Federal 
tax  might  not  be  levied  on  income  derived  from  municipal 
bonds. 

In  Ambrosini  v.  United  States 32  the  court  held  that  bonds 
given  to  secure  the  proper  enforcement  of  State  laws  in 
respect  to  the  sale  of  intoxicating  liquors,  were  not  sub- 
ject to  Federal  taxation. 

An  interesting  case  of  recent  date  bearing  upon  the  right 
of  the  Federal  Government,  by  taxation  or  otherwise, 
to  interfere  with  State  governmental  operations  is  that  of 
the  State  of  South  Carolina  v.  United  States,33  decided  in 
1905.  In  this  case  was  questioned  the  right  of  the  Federal 
Government  to  levy  internal  revenue  taxes  upon  intoxicat- 
ing liquors  sold  under  the  State  dispensary  system  of 
South  Carolina. 

By  several  statutes  the  State  had  assumed  the  direct 
control  of  the  wholesale  and  retail  sale  of  intoxicating 
liquors  within  its  limits,  had  established  dispensaries,  and 


30 121  U.  S.  138;  7  Sup.  Ct.  Rep.  826;  30  L.  ed.  895. 
31  Pollock  v.  Farmers'  L.  &  T.'Co.,  157  U.  S.  429;  15  Sup.  Ct.  Rep. 
673;  39  L.  ed.  759. 

32 187  U.  S.  1;  23  Sup.  Ct.  Rep.  1;  47  L.  ed.  49. 

33  199  U.  S.  437;  26  Sup.  Ct.  Rep.  110;  50  L.  ed.  261. 


380  PRINCIPLES  OF  THE  CONSTITUTIONAL 

appointed  dispensers  therein.  The  dispensers  received 
fixed  salaries,  and  had  therefore  no  pecuniary  interest  in 
the  sales,  the  entire  profits  therefrom  being  appropriated 
by  the  State,  one-half  being  divided  equally  between  the 
municipality  and  the  county  in  which  the  dispensaries 
were  located,  and  the  other  half  paid  into  the  State  treas- 
ury. In  previous  cases  the  Supreme  Court  of  the  United 
States  had  held  that  the  regulation  and  control  of  the  sale 
of  intoxicating  liquors,  so  far  as  interstate  commerce  was 
not  interfered  with,  was  within  the  legitimate  police  power 
of  the  States,  and,  indeed,  by  express  congressional  statute 
the  States  had  been  permitted  to  control  the  sale  of  im- 
ported liquors  after  their  arrival  within  the  States.  The 
question  thus  was:  had  the  Federal  Government  the  con- 
stitutional power  to  exact  taxes  from  officials  appointed 
and  paid  by  the  State  of  South  Carolina  and  performing 
functions  which  the  State  was  constitutionally  empowered 
to  entrust  to  them?  The  Supreme  Court  held  that,  in 
this  particular  case,  it  had. 

The  court  adverted  to  the  fact  that  in  the  cases  in  which 
a  Federal  tax  upon  State  agencies  had  been  held  uncon- 
stitutional, it  had  been  levied  upon  instrumentalities  of 
government.  After  a  review  of  the  cases  the  court  say: 
"These  decisions,  while  not  controlling  the  question  be- 
fore us,  indicate  that  the  thought  has  been  that  the  ex- 
emption of  State  agencies  and  instrumentalities  from 
national  taxation  is  limited  to  those  which  are  of  a  strictly 
governmental  character,  and  does  not  extend  to  those 
which  are  used  by  the  State  in  the  carrying  on  of  an  ordi- 
nary private  business." 

Federal  taxation  of  State  documents 

In  a  number  of  cases  in  the  State  courts  interesting 
points  have  been  raised  and  decided  with  reference  to  the 
obligation  imposed  by  Federal  laws  to  affix  stamps  to  cer- 


LAW  OF  THE  UNITED  STATES  381 

tain  documents.  There  is  little  doubt  that  the  United 
States  may  in  its  own  courts,  or  in  any  other  ways  refuse 
to  recognize  the  validity  of  unstamped  documents,  but 
it  would  seem  that  it  may  not  dictate  to  State  agencies 
what  instruments  they  shall  accept  as  valid  and  enforce- 
able. Though  Congress  may  provide  that  certain  in- 
struments shall  be  stamped  and  that  if  not  so  stamped 
they  shall  not  be  received  as  evidence  in  Federal  courts, 
the  States  cannot  be  compelled  to  exclude  them  as  evi- 
dence in  their  courts  upon  that  ground. 

It  has  also  been  held  by  State  courts  that  the  United 
States  may  not  impose  a  stamp  tax  upon  judicial  processes 
of  State  courts,  or  forbid  the  recording  of  unstamped 
mortgages,  or  tax  the  official  bonds  of  State  officers.34 

Federal  exercise  of  eminent  domain  in  the  States 

The  relation  of  the  Federal  power  to  State  governmental 
instrumentalities  has  been  further  illustrated  in  the  matter 
of  the  Federal  Government's  right  of  eminent  domain, 
it  having  been  held  that  the  General  Government  has  an 
implied  right  of  eminent  domain  which  it  may  exercise 
within  a  State  with  or  without  that  State's  consent.35 
Though  never  authoritatively  decided  the  better  opinion 
is,  however,  that  the  United  States  may  not  take  for  its 
own  use  land  or  other  property  essential  to  the  State  in 
performance  of  its  governmental  functions. 

Special  assessments 

The  taking  by  the  State  of  private  property  in  the  form 
of  taxes  is  held  to  be  justified  and  not  a  taking  of  property 
for  public  use  without  compensation,  upon  the  theory 

34  See  Judson  On  Taxation,  §  501. 

35  Monongahela  Nav.  Co.  v.  United  States,  148  U.  S.  312;  13  Sup. 
Ct.  Rep.  622;  37  L.  ed.  463;  Chappell  v.  United  States,  160  U.  S. 
499;  16  Sup.  Ct.  Rep.  397;  40  L.  ed.  510. 


382  PRINCIPLES  OF  THE  CONSTITUTIONAL 

that  compensation  is  returned  in  the  form  of  police  pro- 
tection and  of  other  benefits  flowing  from  the  existence 
of  the  government.  A  logical  extension  of  this  justifica- 
tion permits  the  State  to  levy  special  taxes  upon  land 
embraced  within  a  given  district  when  the  proceeds  of 
such  taxes  are  to  be  spent  for  improvements  which,  though 
of  general  public  utility,  are  yet  for  the  special  and  peculiar 
benefit  of  that  district.  For,  as  the  court  say  in  Lock- 
wood  v.  St.  Louis  36  "  While  the  few  ought  not  to  be  taxed 
for  the  benefit  of  the  whole,  the  whole  ought  not  to  be 
taxed  for  the  benefit  of  the  few  ....  General  taxation 
for  a  mere  local  purpose  is  unjust;  it  burdens  those  who  are 
not  benefited  and  benefits  those  who  are  exempt  from  the 
burden." 

In  similarity  to  this  principle  that  the  property  pe- 
culiarly benefited  by  a  public  improvement  may  be  called 
upon,  by  a  special  assessment,  to  bear  the  cost  thereof,  is 
the  principle  that,  in  assessing  the  damages  when  private 
property  is  taken  for  a  public  purpose  under  an  exercise 
of  the  right  of  eminent  domain,  the  resulting  benefits  to 
the  owner  from  the  public  use  to  which  his  appropriated 
property  is  devoted  may  be  subtracted  from  the  value  of 
the  property  taken.  The  right  thus  to  set  off  benefits  was 
denied  by  the  court  of  appeals  of  the  District  of  Columbia 
in  several  cases,  but  the  Supreme  Court  of  the  United 
States,  in  Bauman  v.  Ross  37  emphatically  repudiated  the 
doctrine,  saying:  "The  just  compensation  required  by  the 
Constitution  to  be  made  to  the  owner  is  to  be  measured 
by  the  loss  caused  to  him  by  the  appropriation  [of  his 
property].  He  is  entitled  to  receive  the  value  of  what  he 
has  been  deprived  of  and  no  more.  To  award  him  more 
would  be  unjust  to  the  public.  Consequently,  when  part 


36  24  Mo.  20. 

37 167  U.  S.  548;  17  Sup.  Ct.  Rep.  966;  42  L.  ed.  270. 


LAW  OF  THE  UNITED  STATES  383 

only  of  a  parcel  of  land  is  taken  for  a  highway,  the  value 
of  that  part  is  not  the  sole  measure  of  the  compensation 
or  damages  to  be  paid  to  the  owner;  but  the  incidental 
injury  or  benefit  to  the  part  not  taken  is  also  to  be  con- 
sidered." 

Taxes  and  special  assessments  distinguished 

Special  assessments  are,  properly  speaking,  taxes,  and 
yet  they  are  of  so  peculiar  a  character  that  the  courts 
have  not  infrequently  refused  to  bring  them  within  the 
meaning  of  the  term  "tax."  Thus  where  certain  corpor- 
ations or  pieces  of  property  have  been  by  law  exempted 
from  taxation,  they  have,  nevertheless,  been  held  subject 
to  special  assessments.38  Again,  where  State  constitu- 
tions have  provided  that  taxation  shall  be  equal  and  uni- 
form, or  that  all  property  shall  be  taxed  according  to  its 
value,  the  courts  have  nevertheless  held  that  special  assess- 
ments for  local  improvements  may  be  levied  and  assessed 
according  to  the  front-foot  rule  or  by  a  standard  other 
than  that  of  value. 

Judge  Cooley  quotes  the  following  from  a  decision  of  a 
Mississippi  court  in  illustration  of  the  distinction  between 
a  tax  and  a  special  assessment: 

"A  local  assessment  can  only  be  levied  on  land,  it  can- 
not, as  a  tax  can,  be  made  a  personal  liability  of  the  tax- 
payer; it  is  an  assessment  on  the  thing  supposed  to  be 
benefited.  A  tax  is  levied  upon  the  whole  State  or  a 
known  political  sub-division  as  a  county  or  town.  A  local 
assessment  is  levied  upon  property  situated  in  a  district 
created  for  the  express  purpose  of  the  levy  and  possessing 
no  other  function  or  even  existence  than  to  be  the  thing 
upon  which  the  levy  is  made.  A  tax  is  a  continuing  burden 


38  Lefevre  v.  Detroit,  2  Mich.  586;  111.  Cen.  Ry.  Co.  v.  Decatur, 
126  111.  92.    See  Michigan  Law  Review,  II,  455. 


384:  PRINCIPLES  OF  THE  CONSTITUTIONAL 

and  must  be  collected  at  short  intervals  for  all  the  time 
and  without  it  government  cannot  exist ;  a  local  assessment 
is  exceptional  both  as  to  time  and  locality,  it  is  brought 
into  being  for  a  particular  occasion  and  to  accomplish  a 
particular  purpose  and  dies  with  the  passing  of  the  occasion 
and  the  accomplishment  of  the  purpose.  A  tax  is  levied, 
collected  and  administered  by  a  public  agency,  elected 
by  and  responsible  to  the  community  upon  which  it  is  im- 
posed; a  local  assessment  is  made  by  an  authority  ab  extra. 
Yet  is  is  like  a  tax  in  that  it  is  imposed  under  an  authority 
derived  from  the  legislature,  and  is  an  enforced  contribu- 
tion to  the  public  welfare,  and  its  payment  may  be  en- 
forced by  the  summary  method  allowed  for  the  collection 
of  taxes.  It  is  like  a  tax  in  that  it  must  be  levied  for  a 
public  purpose  and  must  be  apportioned  by  some  reason- 
able rule  among  those  upon  whose  property  it  is  levied. 
It  is  unlike  a  tax  in  that  the  proceeds  of  an  assessment 
must  be  expended  in  an  improvement  from  which  a  benefit 
clearly  exceptive  and  plainly  perceived  must  inure  to  the 
property  upon  which  it  is  imposed."  39 

Constitutional  requirements  of  special  assessments 

The  power  of  the  legislature  to  establish  special  taxing 
districts  upon  the  lands  within  which  a  special  tax  is  to 
be  levied,  assessed,  and  collected  is  limited  by  the  following 
rules:  (1)  There  must  be  some  reasonable  ground  for  group- 
ing into  a  single  district  the  lands  composing  it,  and  this 
reasonable  ground  must,  as  has  been  said,  be  that  the 
lands  in  question  will  derive  special  benefit  from  the  public 
improvement  to  meet  the  expenses  of  which  the  tax  is 
levied.  It  follows,  therefore,  as  of  course,  that  the  pro- 
ceeds of  the  tax  may  not  be  used  for  other  purposes. 
(2)  The  tax  so  levied  must  be  assessed  according  to  a  rule 


39  Maeon  v.  Patty,  57  Miss.  378. 


LAW  OF  THE  UNITED  STATES  385 

uniformly  applied  throughout  the  district,  which,  in  its 
actual  operation,  will  fairly  distribute  the  tax  among  the 
several  pieces  of  property  affected  according  to  the  benefits 
received  or  to  be  received  from  the  public  improvement 
which  is  undertaken.  Whether  or  not  the  assessments  may 
be  in  excess  of  the  benefits  is  a  question  to  be  presently 
considered,  but  in  any  case  they  must  be  apportioned 
generally  according  to  the  benefits.  By  this  is  not  meant 
that  this  apportionment  must  be  absolutely  exact.  This, 
in  most  cases,  is  an  impossibility,  But,  generally  speak- 
ing, the  part  of  the  entire  tax  borne  by  each  piece  of  land 
must  agree  with  the  part  of  the  entire  benefit  received.40 
When  a  public  improvement  is  to  be  undertaken  which 
will  result  in  a  special  benefit  to  a  particular  district,  it  is 
not  obligatory  upon  the  legislature  to  levy  a  special  assess- 
ment upon  that  district  for  the  purpose.  Whether  or  not 
it  will  do  so  lies  within  its  free  discretion.  Also  the  fact 
that  the  proposed  improvement  will  be,  to  a  certain  extent, 
of  general  benefit  to  the  whole  community,  does  not  render 
invalid  a  special  assessment  upon  the  district  especially 
benefited.41 

Special  assessments  in  excess  of  benefits 

It  has  been  seen  that  the  justification  for  a  special 
assessment  is  the  special  benefit  received.  Logically  and 
justly,  it  would  seem,  therefore,  that  such  special  assess- 
ments should  in  no  case  be  permitted  to  exceed,  to  any 
substantial  extent  at  least,  the  benefits  which  justify  them. 
In  fact,  however,  until  recently  at  least,  the  rule  appears 
to  have  been  that,  so  long  as  they  are  apportioned  accord- 
ing to  benefits,  they  are  not  necessarily  measured  in  abso- 

40  Union  Refrigerator  Co.  v.  Kentucky,  199  U.  S.  194;  26  Sup.  Ct. 
Rep.  36;  50  L.  ed.  150. 

41  Bauman  v.  Ross,  167  U.  S.  548;  17  Sup.  Ct.  Rep.  966;  42  L.  ed. 
270. 

25 


386  PRINCIPLES  OF  THE  CONSTITUTIONAL 

lute  amount  by  such  benefits.  Thus,  for  example,  in 
Bauman  v.  Ross,  cited  above,  in  which  was  involved  a  law 
which  provided  that  one-half  of  the  amount  measured  as 
damages  for  the  taking  of  the  lands  needed  for  the  improve- 
ment contemplated,  should  be  assessed  upon  the  lands 
benefited,  no  provision  appeared  to  meet  cases  in  which  the 
assessments  thus  provided  for  might  exceed  the  benefits 
conferred;  yet  the  court  declared:  "This  fixing  of  the  gross 
sum  to  be  assessed  was  within  the  authority  of  Congress." 

In  1898,  however,  was  decided  the  case  of  Norwood  v. 
Baker,42  which  seemed  to  state  a  new  doctrine  which  was 
for  a  time  extraordinarily  disconcerting.  For  if,  as  the 
case  seemed  to  hold,  a  special  assessment  according  to 
some  uniform  rule  of  assessment,  such  as  the  front-foot 
rule,  could  not  be  applied  until  it  had  been  determined, 
after  a  hearing,  that  it  would  not  impose  upon  any  particu- 
lar piece  of  property  a  tax  in  substantial  excess  of  the  bene- 
fits conferred  by  the  improvement  upon  that  property, 
the  practice  and  procedure  of  special  assessment  through- 
out the  country  would  in  many  cases  have  to  be  revised. 

In  a  series  of  cases,  decided  in  1901,  however,  the  court 
brought  back  the  law  very  nearly,  if  not  quite,  to  its  former 
condition.43 

Summarizing  the  result,  or  rather  the  tendency  of  the 
cases  reviewed,  it  would  appear  that  the  Supreme  Court 
has  drawn  away  from  the  doctrine  stated  in  its  earlier 
cases  that  a  special  assessment  will  be  upheld  if  apportioned 

42 172  U.  S.  269;  19  Sup.  Ct.  Rep.  187;  43  L.  ed.  443. 

43  French  v.  Barber  Asphalt  Paving  Co.,  181  U.  S.  324;  21  Sup.  Ct. 
Rep.  625;  45  L.  ed.  879;  Tonawanda  v.  Lyon,  181  U.  S.  389;  21  Sup. 
Ct.  Rep.  609;  45  L.  ed.  908;  Wight  v.  Davidson,  181  U.  S.  371;  21 
Sup.  Ct.  Rep.  616;  45  L.  ed.  900.  See  also,  in  further  development 
of  the  doctrine,  Louisville  &  Nashville  R.  R.  Co.  v.  Barber  Asphalt 
Paving  Co.,  197  U.  S.  430;  25  Sup.  Ct.  Rep.  466;  49  L.  ed.  819; 
Martin  v.  District  of  Columbia,  205  U.  S.  135;  27  Sup.  Ct.  Rep.  440; 
51  L.  ed.  743, 


LAW  OF  THE  UNITED  STATES  387 

according  to  a  rule  which,  in  its  general  operation,  dis- 
tributes the  burden  of  the  tax  in  proportion  to  the  benefits 
received,  even  though  such  assessments  may,  as  to  particu- 
lar pieces  of  property,  be  in  substantial  excess  of  the  bene- 
fits received.  In  place  of  this  doctrine  the  court,  though 
with  considerable  falterings,  has  declared  that  "when  the 
chance  of  the  cost  exceeding  the  benefit  grows  large,  and 
the  amount  of  the  not  improbable  excess  is  great"  the 
assessment  will  not  be  sustained.  Except  in  such  ex- 
treme cases,  however,  the  legislative  determination  as  to 
the  propriety  of  the  assessment  and  of  the  mode  of  its 
apportionment  will  be  held  controlling. 

Property  taxed  must  be  within  the  jurisdiction  of  the  State 
By  reason  of  the  due  process  clause  of  the  Fourteenth 
Amendment,  and  as  a  result  from  the  fact  that  no  State 
may  give  extraterritorial  force  to  its  laws,  the  States  of  the 
Union  are  constitutionally  disqualified  from  levying  taxes 
upon  property  without  their  several  territorial  jurisdictions. 
This  principle,  simple  and  absolute  in  itself,  often  becomes, 
however,  difficult  of  application  because  of  the  difficulty 
in  determining,  in  certain  cases,  when  a  given  piece  of 
property  may  be  legally  considered  within  the  jurisdiction 
of  the  State  attempting  to  tax  it.  This  difficulty  is  illus- 
trated in  the  sections  which  follow. 

The  right  to  tax  depending  upon  the  actual  or  construc- 
tive presence  within  the  jurisdiction  of  the  property  taxed, 
and  the  tax  thus  operating  in  rem  rather  than  in  personam 
against  the  owner,  it  follows  that,  strictly  speaking,  the 
owner,  not  domiciled  in  the  State,  cannot  be  made  per- 
sonally liable  for  the  tax.44 

All  incorporeal  heriditaments,  for  example,  as  corporate 

44  Dewey  v.  Des  Moines,  173  U.  S.  193;  19  Sup.  Ct.  Rep.  379;  43 
L.  ed.  665;  Cony  v.  Baltimore,  196  U.  S.  466;  25  Sup.  Ct.  Rep.  297; 
49  L.  od.  556. 


388  PRINCIPLES  OF  THE  CONSTITUTIONAL 

franchises,  may  be  taxed  only  in  the  State  from  whose  law 
they  are  derived  and  where,  consequently,  they  have  their 
legal  situs.45 

Taxation  of  tangible  personal  property 

The  right  of  the  State  to  tax  all  real  property  situ- 
ated within  its  borders,  (except  property  of  the  United 
States  or  of  a  foreign  government)  has  never  been  ques- 
tioned. Its  inability  to  tax  real  property  beyond  its 
borders  is  equally  uncontested.  In  these  respects  tangible 
personal  property  is  grouped  with  real  property. 

That  tangible  personal  property  situated  within  one 
State  may  not  be  taxed  by  another  State,  even  though 
its  owner  be  domiciled  therein,  is  definitely  stated  in 
Union  Refrigerator  Transit  Co.  v.  Kentucky,46  decided  in 
1905. 

Taxation  of  property  situated  in  several  jurisdictions 

The  instrumentalities  through  which  commerce  is  car- 
ried on  between  the  States  and  with  foreign  countries  may 
be  taxed  by  the  States  as  property  to  the  extent  that  such 
instrumentalities  are  within  the  several  territories  of  the 
States  so  taxing  them.  Thus,  buildings  used  for  freight 
and  passenger  stations  and  for  offices,  roadbeds,  rails, 
machine  shops,  'etc.,  may  be  taxed  by  the  States  in  which 
they  are  situated,  so  long  as  the  tax  is  a  general  property 
tax  and  not  one  laid  upon  them  specially,  nor  at  a  special 
rate  because  of  their  employment  in  interstate  commerce. 
In  determining,  however,  the  value  of  these  properties, 
the  important  principle  has  been  laid  down  that  in  estimat- 
ing the  value  of  the  property  within  the  State,  of  a  company 
doing  business  in  several  States,  the  entire  property  may 

45  Louisville,  etc.,  Ferry  Co.  v.  Kentucky,  188  U.  S.  385;  23  Sup. 
Ct.  Rep.  463;  47  L.  ed.  513. 

46 199  U.  S.  194;  26  Sup.  Ct.  Rep.  36;  50  L.  ed.  150. 


~    LAW  OF  THE  UNITED  STATES  389 

be  treated  as  a  unit  and  its  value  in  use  as  such  deter- 
mined, and  the  value  of  the  part  of  the  property  in  the 
particular  State  estimated  as  bearing  the  same  proportion 
to  the  whole  property  as  the  amount  of  the  business  done 
in  the  State  bears  to  the  whole  business  done  by  the  com- 
pany, or  the  mileage  of  tracks  of  a  railway  company,  or  of 
wires,  of  a  telegraph  or  telephone  company,  bears  to  the 
entire  mileage  of  tracks  or  wires  of  the  company  taxed. 

This  "unit  in  use"  principle  of  valuation  received  an 
extensive  application  in  the  case  of  Adams  Express  Co. 
v.  Ohio  State  Auditor,47  decided  1897,  for  there  the  actual 
tangible  property  within  the  State  was  inconsiderable 
whereas  the  value  of  the  entire  concern  measured  by  the 
amount  of  business  done  was  very  great.  Furthermore, 
there  was  there  lacking  that  physical  unity  of  plant  which 
is  found  in  railroad  and  telegraph  companies. 

In  taxing  the  property  within  the  State  of  a  company 
operating  in  two  or  more  States  the  not  unusual  practice 
has  been  to  levy  the  tax  on  the  capital  stock  of  the  com- 
pany, taking  as  the  basis  of  assessment  such  proportion 
of  the  capital  stock  as  the  amount  of  business  done  within 
the  State  bears  to  the  entire  business  done;  and  in  rail- 
roads, telegraph  and  telephone  companies,  determining 
this  proportion  by  the  proportion  of  the  total  mileage  of 
track  or  wires  lying  within  the  State.  This,  for  example, 
was  the  method  employed  in  the  leading  case  of  Pullman's 
Palace  Car  Co.  v.  Pennsylvania,48  decided  in  1891.  This 
also  was  the  method  employed  in  Delaware,  L.  &  W.  R. 
Co.  v.  Pennsylvania,49  in  which  it  was  held  that  in  apprais- 
ing the  capital  stock,  tangible  property  located  in  other 
States  might  not  be  included. 


47 165  U.  S.  194;  17  Sup.  Ct.  Rep.  305;  41  L.  ed.  683. 
48 141  U.  S.  18;  11  Sup.  Ct.  Rep.  876;  35  L.  ed.  613. 
49 198  U.  S.  341;  25  Sup.  Ct.  Rep.  669;  49  L.  ed.  1077. 


390  PRINCIPLES  OF  THE  CONSTITUTIONAL 

Taxation  of  movables 

In  a  series  of  cases  the  Supreme  Court  has  held  that  in 
taxing  the  rolling  stock  of  railway,  sleeping-car  and  re- 
frigerator companies,  a  State  may  estimate  the  number 
of  cars  upon  the  average  kept  and  used  within  the  State, 
and  for  the  determination  of  this  average  may  use  any 
reasonable  rule,  the  one  ordinarily  employed  being  that  of 
mileage.  Conversely  that  part  of  the  property  of  a  cor- 
poration which  upon  an  average  is  kept  and  employed  out- 
side of  the  State  may  not  be  taxed.50 

Taxation  of  intangible  personal  property 

Whereas,  with  reference  to  the  taxation  of  tangible 
personal  property,  the  practice  has  been  to  determine  its 
situs  by  its  actual  location,  with  respect  to  intangible  per- 
sonalty, the  principle  of  mobilia  sequuntur  personam,  has 
generally,  though  we  shall  presently  see,  not  always,  been 
applied.51 

However,  in  the  case  of  State  Tax  on  Foreign-Held 
Bonds,52  decided  in  1873,  declarations  were  made,  which, 
if  strictly  adhered  to,  would  have  greatly  embarrassed  the 
States  in  their  attempts  to  tax  intangible  personal  prop- 
erty. In  this  case  it  was  declared  that  bonds  and  other 
evidences  of  indebtedness  are  property  in  the  hands  of  the 
holders,  and,  when  held  by  non-residents  of  the  State  in 
which  issued,  are  property  beyond  the  jurisdiction  of, 
and  therefore  not  taxable  by,  that  State.  The  law  con- 
tested in  this  case  had  required  that  a  domestic  railroad 
company  should,  before  the  payment  of  the  interest  on 
certain  of  its  bonds,  retain  out  therefrom  the  amount  of 


50  Pullman  Co.  v.  Pennsylvania,  141  U.  S.  18;  11  Sup.  Ct.  Rep.  876; 
35  L.  ed.  613. 

51  Union  Refrigerator  Transit  Co.  v.  Kentucky,  199  U.  S.  194; 
26  Sup.  Ct.  Rep.  36;  50  L.  ed.  150. 

52  15  Wall.  300;  21  L.  ed.  179. 


LAW  OF  THE  UNITED  STATES  391 

the  tax  and  pay  it  over  to  the  State.  By  this  direction, 
it  was  held,  the  law  operated  to  impair  the  obligation  of 
the  contract  between  the  company  and  its  non-resident 
bondholders,  and  the  court  held  that  it  was  such  an  im- 
pairment because  it  was  not  a  proper  exercise  of  the  taxing 
power,  even  though  the  bonds  were  secured  by  mortgages 
on  property  situated  within  the  State.  The  court  in  its 
opinion  declared:  " Debts  owing  by  corporations,  like  debts 
owing  by  individuals  are  not  property  of  the  debtors  in  any 
sense ;  they  are  obligations  of  the  debtors,  and  only  possess 
value  in  the  hands  of  the  creditors.  With  them  they  are 
property,  and  in  their  hands  they  may  be  taxed.  ...  A 
mortgage  being  a  mere  chose  in  action,  it  only  confers  upon 
its  holder,  or  the  party  for  whose  benefit  it  is  given,  a  right 
to  proceed  against  the  property  mortgaged,  upon  a  given 
contingency,  to  enforce  by  its  sale  the  payment  of  his 
demand.  It  may  undoubtedly  be  taxed  by  the  State 
when  held  by  a  resident  therein,  but  when  held  by  a  non- 
resident it  is  as  much  beyond  the  jurisdiction  of  the  State 
as  the  person  of  the  owner."  After  admitting  that  public 
securities  consisting  of  State  bonds  and  bonds  of  municipal 
bodies  and  circulating  bank  notes  might  have  a  situs 
for  taxation  apart  from  the  domicile  of  their  owners,  the 
court  go  on  to  say:  "But  all  other  personal  property, 
consisting  of  bonds,  mortgages,  and  debts  generally, 
have  no  situs  independent  of  the  domicile  of  the  owner, 
and  certainly  can  have  none  where  the  instruments, 
as  in  the  present  case,  constituting  the  evidence  of 
debt,  are  not  separated  from  the  possession  of  the 
owners." 

The  principles  thus  broadly  laid  down  in  the  State  Tax 
on  Foreign-Held  Bonds  case  had  soon  to  be  modified,  and, 
in  fact,  the  case  has  since  been  held  down  to  the  precise 
point  decided.  That  public  securities,  consisting  of  State 
bonds  and  bonds  of  municipal  corporations  and  circulating 


392  PRINCIPLES  OF  THE  CONSTITUTIONAL 

notes  of  banking  institutions  are  exempted  from  the  princi- 
ples mobilia  sequuntur  personam,  is  stated  in  the  case  itself. 
But  in  later  cases  the  same  exemption  is  applied  to  shares 
of  stock,  mortgages,  and  to  a  certain  extent,  to  promissory 
notes  and  other  credits.  This  will  appear  in  the  sections 
which  follow. 

Taxation  of  shares  of  stock,  mortgages  and  credits 

Shares  of  stock  in  incorporated  companies  may  be  viewed 
either  as  property  in  the  hands  of  their  holders  or  as  repre- 
senting the  property  of  the  company.  Thus  they  are 
viewed  in  the  latter  light  when  their  value  is  taken  as 
measuring  the  value  of  the  property  of  the  company  for 
the  purposes  of  a  property  tax  upon  that  company.  In 
such  cases,  as  we  have  seen,  tangible  property  of  the  com- 
pany permanently  located  outside  of  the  State  may  not  be 
included  in  the  appraisement  The  States  may  also  levy 
a  license  tax  upon  a  domestic  corporation,  that  is,  upon 
its  right  not  simply  to  be,  but  to  do  business  within  the 
State,  and  this  license  tax  it  may  measure  by  the  value  of 
the  capital  stock.  Also  a  State  may  levy  a  similar  tax 
upon  a  foreign  corporation,  unless  engaged  in  interstate 
commerce,  the  payment  of  which  is  made  a  condition  pre- 
cedent to  its  right  to  enter  the  State  and  do  business  therein, 
and  measure  this  tax  by  the  nominal  or  market  value  of  the 
capital  stock  of  the  company.  In  both  of  these  cases  the 
tax  is  not,  in  reality,  upon  the  capital  stock,  but  is  measured 
by  it.  The  present  section  will  be  concerned  with  the 
taxation  of  corporate  stock  as  intangible  personal  property 
in  the  hands  of  its  holders  or  owners. 

The  declaration  of  the  court  in  the  State  Tax  on  Fpreign- 
Held  Bonds  case,  would,  if  strictly  pursued,  have  pre- 
vented the  levying  of  such  a  tax  upon  non-resident  holders 
of  the  stock  of  domestic  corporations,  upon  the  principle 
of  mobilia  sequuntur  personam.  In  Tappan  v.  Merchants' 


LAW  OF  THE  UNITED  STATES  393 

National  Bank/''3  however,  the  court  held  that,  as  to  shares 
of  stock  at  least,  this  principle  does  not  reasonably  apply, 
and  that,  for  purposes  of  taxation,  these  shares  may  be 
separated  from  the  person  of  their  owner  and  given  a  situs 
where  the  corporation  has  its  situs,  namely,  at  the  place 
of  its  incorporation. 

In  Savings  and  Loan  Society  v.  Multnomah  54  the  broad 
dicta  of  the  court  in  the  State  Tax  on  Foreign-Held  Bonds 
cases  were  again  modified,  this  time  with  reference  to  the 
taxation  of  mortgages.  In  this  case  the  court  held  that 
mortgages,  whether  held  by  residents  or  non-residents, 
may  be  taxed  at  their  full  value  by  the  State  in  which  the 
mortgaged  property  is  located,  and  that  this  may  be  done 
either  by  taxing  the  whole  value  of  the  property  to  the 
mortgagor  or  by  taxing  to  the  mortgagee  the  interest  repre- 
sented by  the  mortgage  and  the  remainder  to  the  mort- 
gagor. 

In  the  preceding  paragraphs  we  have  seen  that  mort- 
gages and  shares  of  stocks  have  been  taken  out  of  the 
broad  doctrine  declared  in  the  State  Tax  on  Foreign-Held 
Bonds  case,  which  placed  them  under  the  rule  of  mobilia 
sequuntur  personam.  To  a  very  considerable  extent  the 
same  is  true  as  to  promissory  notes  and  similar  evidences 
of  indebtedness.  The  rule  of  mobilia  sequuntur  personam 
has,  however,  not  been  followed  when  the  notes  have  been 
placed  in  the  hands  of  an  agent  for  receipt  of  the  interest 
or  for  the  collection  of  the  capital  sums.  In  such  cases  the 
situs  of  the  notes  has  in  some  cases  been  held  to  be  that  of 
the  agent;  in  others,  where  there  has  been  apparent  a 
scheme  to  avoid  the  payment  of  taxes,  the  situs  has  been 
held  to  be  at  the  domicile  of  their  owner.55 


53  19  Wall.  490;  22  L.  ed.  189. 

54  169  U.  S.  421;  18  Sup.  Ct.  Rep.  392;  42  L.  ed.  803. 

55  Kirtland  v.  Hotchkiss,  100  U.  S.  491;  25  L.  ed.  558;  New  Orleans 
v.  Stempel,  175  U.  S.  309;  20  Sup.  Ct.  Rep.  110;  44  L.  ed.  174;  Bristol 


394  PRINCIPLES  OF  THE  CONSTITUTIONAL 

Taxation  of  franchises 

The  State  which  incorporates,  and  that  State  only,  may 
tax  the  franchise  of  a  corporation,  that  is,  its  right  to  be 
and  operate  as  a  corporation.56 

It  would  seem,  however,  that  the  franchise  or  permission 
granted  a  foreign  corporation  to  do  business  in  a  State 
may  be  taxed  as  property  in  that  State.  Also,  of  course, 
a  yearly  payment  by  the  companies  may  be  required  by 
that  State  as  a  condition  precedent  to  doing  business  in 
that  State,  but  such  payments  partake  more  of  the  nature 
of  a  license  fee  than  of  a  tax. 

As  regards  a  domestic  corporation,  a  State  may  tax  not 
only  its  property,  and  its  franchise  (valuing  that  franchise 
by  net  or  gross  receipts),  but  also  may  tax,  as  property, 
privileges  or  rights  which  it  may  have  granted,  as,  for  ex- 
ample the  use  of  the  public  streets.  The  fact  that,  at  the 
time  of  the  granting  of  this  right  or  privilege,  payment  was 
made  therefor  by  the  company,  either  in  the  form  of  a 
lump  sum  or  a  continuing  annual  amount,  does  not  exempt 
that  right  from  taxation  according  to  its  pecuniary  value, 
any  more  than  does  the  purchase  of  a  piece  of  land  from 
the  State  and  payment  therefor  exempt  it  from  future 
taxation  as  property.57 

That  a  franchise  may  be  taxed  as  a  piece  of  property, 
and  that,  in  estimating  the  value  of  this  property,  the 
value  of  the  good  will  of  the  company  may  be  included, 
is  clearly  established  in  Adams  Express  Co.  v.  Ohio.58 

v.  Washington  Co.,  177  U.  S.  133;  20  Sup.  Ct.  Rep.  585;  44  L.  ed. 
701;  Blackstone  v.  Miller,  188  U.  S.  189;  23  Sup.  Ct.  Rep.  277;  47 
L.  ed.  439;  State  Board  v.  Comptoir  National,  191  U.  S.  388;  24  Sup. 
Ct.  Rep.  109;  48  L.  ed.  232;  Buck  v.  Beach,  206  U.  S.  392;  27  Sup. 
Ct.  Rep.  712;  51  L.  ed.  1106. 

66  Louisville,  etc.,  Ferry  Co.  v.  Kentucky,  188  U.  S.  385;  23  Sup. 
Ct.  Rep.  463;  47  L.  ed.  513. 

57  People  v.  Roberts,  154  N.  Y.  101;  159  N.  Y.  70. 

58 166  U.  S.  185;  17  Sup.  Ct.  Rep.  604;  41  L.  ed.  965.    See,  also, 


LAW  OF  THE  UNITED  STATES  395 

Double  taxation 

We  have  seen  that  the  right  of  a  State  to  tax  depends 
upon  its  jurisdiction  over  the  object  taxed,  and  that  this 
jurisdiction  is  obtained  by  either  actual  or  constructive 
presence  of  the  object  within  the  State's  territorial  limits. 
This  constructive  presence  applies  to  personal  property 
and  depends  upon  the  principle  mobilia  sequuntur  personam. 
As  to  personal  property  it  is  thus  possible  that  it  may  be 
actually  in  one  State  and  be  there  taxed,  and  constructively 
in  another  State  and  there  also  taxed.  The  fact  that  one 
State  has  exercised  its  jurisdiction  with  reference  to  a  mat- 
ter, whether  of  taxation  or  otherwise,  clearly  can  impose 
no  obligation  upon  another  State  not  to  exercise  such  ju- 
risdiction as  it  may  have.  This  the  Supreme  Court  of  the 
United  States  has  repeatedly  recognized.59 

The  double  taxation  of  a  piece  of  property  by  the  same 
State  that  is,  its  taxation  twice  viewed  in  the  same  aspect, 
is  however,  forbidden  not  only  by  the  several  constitutions 
of  most  of  the  States,  but  by  the  Fourteenth  Amendment. 

Metropolitan  Ry.  Co.  v.  Tax  Commissioners,  199  U.  S.  1;  25  Sup.  Ct. 
Rep.  705;  50  L.  ed.  65. 

59  Coe  v.  Errol,  116  U.  S.  517;  6  Sup.  Ct.  Rep.  475;  29  L.  ed.  715; 
Blackstone  v.  Miller,  188  U.  S.  189;  23  Sup.  Ct.  Rep.  277;  47  L.  ed. 
439. 


CHAPTER  XL 

THE    FEDERAL   JUDICIARY:    ITS    ORGANIZATION 

Constitutional  provisions 

The  Constitution  provides  that  there  shall  be  a  Supreme 
Court  of  the  United  States,  and  such  inferior  courts  as 
Congress  may  from  time  to  time  ordain  and  establish. 
It  is  also  provided  that  "the  judges  both  of  the  supreme 
and  inferior  courts  shall  hold  their  offices  during  good  be- 
havior, and  shall,  at  stated  times,  receive  for  their  services 
a  compensation  which  shall  not  be  diminished  during  their 
continuance  in  office;"1  and  that  the  judges  of  the  Su- 
preme Court  shall  be  nominated  by  the  President  and  ap- 
pointed by  and  with  the  advice  and  consent  of  the  Senate. 
All  the  other  Federal  justices  are  similarly  appointed,  but 
it  is  in  the  power  of  Congress  to  vest  their  appointment, 
"in  the  President  alone,  in  the  courts  of  law,  or  in  the  heads 
of  departments. ": 

With  the  exception  then  of  the  tenure  of  office,3  and  the 
constitutional  provision  regarding  the  appointment  of  the 
justices  of  the  Supreme  Court,  the  form  of  organization,  the 
number  of  justices,  etc.,  the  Federal  courts,  including  the 
Supreme  Court,  are  wholly  within  the  control  of  Congress. 

The  practice  and  procedure  to  be  followed  in  these 
courts  is  also  within  the  control  of  Congress  except  as  to 

1Art.  Ill,  §  1. 

2  Art.  II,  §  2,  cl.  2. 

3  This  exception  does  not  apply  to  territorial  courts,  and  to  such 
quasi  judicial  bodies  as  the  Interstate  Commerce  Commission,  these 
being  rather  congressional  agencies  than  parts  of  the  Federal  ju- 
diciary.   See  Clinton  v.  Englebrecht,  13  Wall.  434;  20  L.  ed.  659. 

396 


LAW  OF  THE  UNITED  STATES  397 

certain  mandatory  provisions  with  reference  to  jury  trial, 
second  jeopardy,  speedy  and  public  trial,  etc.,  contained 
principally  in  the  first  eight  Amendments  of  the  Constitu- 
tion. These  constitutional  rights,  immunities,  and  privi- 
leges guaranteed  to  the  individual  are  considered  elsewhere. 

Inferior  Federal  courts 

By  the  original  Judiciary  Act  of  1789  provision  was  made 
for  inferior  Federal  courts  to  be  known  as  District  and  Cir- 
cuit Courts.  The  territory  of  the  Union  was  divided  into 
districts  composed  of  a  State  or  portions  of  a  State,  for  each 
of  which  a  District  Court  was  provided;  and  these  dis- 
tricts were  grouped  into  circuits  for  each  of  which  circuit 
courts  were  provided  and  a  Justice  of  the  Supreme  Court 
assigned  as  Circuit  Judge.  With  the  exception  of  minor 
changes,  as  for  example,  the  creation  of  new  districts  and 
circuits  and  making  provision  for  Circuit  Judges  in  addition 
to  the  Justices  of  the  Supreme  Court,  the  system  thus 
established  remained  undisturbed  for  over  one  hundred 
years.  In  1891,  Congress  created  a  new  class  of  Federal 
tribunals  known  as  the  Circuit  Courts  of  Appeals,  one  of 
these  being  assigned  to  each  of  the  existing  nine  circuits; 
and  in  1911  the  circuit  courts  were  abolished.  Also  in 
1909  a  Court  of  Customs  Appeals,  and  in  1910  a  Commerce 
Court  were  created. 

As  at  present  constituted,  therefore,  the  Federal  judicial 
machinery  consists  of  a  Supreme  Court,  Circuit  Courts 
of  Appeals,  District  Courts,  a  Court  of  Customs  Appeals, 
and  a  Commerce  Court.  In  addition  to  these  there  are 
also  a  Court  of  Claims,  and  the  Judiciary  of  the  District 
of  Columbia. 

The  Supreme  Court— Its  organization 

The  Supreme  Court  is  at  present  composed  of  nine 
justices — eight  associate  justices  and  one  chief  justice. 


398  PRINCIPLES  OF  THE  CONSTITUTIONAL 

It  sits  at  Washington,  D.  C.,  and  holds  annual  terms  be- 
ginning in  October  and  lasting  until  the  end  of  May. 

Each  justice  of  the  Supreme  Court  is  assigned  to  a  cir- 
cuit where,  in  addition  to  certain  administrative  functions 
with  reference  to  the  assigning  of  judges  to  particular 
courts,  he  may  sit  in  the  Circuit  Court  of  Appeals. 

Circuit  Courts  of  Appeals  — Organization 

The  Circuit  Courts  of  Appeals  created  by  the  act  of 
1891  are  each  held  by  three  justices.  These  may  be  the 
Supreme  Court  Justice  of  the  circuit,  the  circuit  judges, 
or  one  or  more  of  the  district  judges.  Two  judges  con- 
stitute a  quorum. 

District  Courts  —Organization 

There  are  now  about  eighty  District  Courts,  nine  of 
which  are  in  the  territories.  In  a  few  instances  two  dis- 
tricts are  assigned  to  one  judge.  For  each  district  a 
United  States  district  attorney  is  appointed  to  represent 
the  interests  of  the  Federal  Government.  Marshals  and 
other  court  officers  are  also  provided.  District  judges 
must  reside  within  their  respective  districts.  They  may, 
when  assigned  by  the  circuit  judge  or  justice  or  the  Chief 
Justice  of  the  Supreme  Court,  hold  the  District  or  Circuit 
Court  for  any  other  district  of  the  circuit  within  which 
their  districts  lie,  and  any  one  of  them  may  upon  the  desig- 
nation of  the  Chief  Justice  hold  the  District  and  Circuit 
Court  of  any  District  in  a  Circuit  contiguous  to  his  own. 

Court  of  Customs  Appeals 

This  court  consists  of  five  judges,  of  whom  three  con- 
stitute a  quorum,  but  the  concurrence  of  three  judges  is 
necessary  for  a  decision.  The  clerk  of  the  court  has  his 
office  at  Washington,  D.  C.,  but  the  court  may  be  held 
in  any  one  of  the  judicial  circuits. 


LAW  OF  THE  UNITED  STATES  399 

Commerce  Court 

The  Commerce  Court  is  composed  of  five  judges  as- 
signed to  it  by  the  Chief  Justice  of  the  United  States,  for 
periods  of  five  years,  from  among  the  circuit  judges  of  the 
United  States.  Four  judges  constitute  a  quorum,  and 
the  concurrence  of  a  majority  of  the  court  is  necessary  for 
a  decision.  The  court  usually  sits  at  Washington,  but 
may,  when  expedient,  sit  elsewhere. 

Court  of  Claims — Organization 

This  tribunal  was  established  in  1855,  and  is  at  present 
composed  of  five  justices.  It  sits  at  Washington,  D.  C., 
holding  one  term  yearly,  beginning  the  first  Monday  in 
December. 


Judiciary  of  the  District  of  Columbia 

The  Courts  of  the  District  of  Columbia  consist  of  Police 
Courts,  a  Supreme  Court,  and  a  Court  of  Appeals.  The 
Supreme  Court  consists  of  a  chief  justice  and  five  associate 
justices,  each  of  whom  individually  holds  court  for  the 
trial  of  law,  equity  and  criminal  cases.  Thence  an  appeal 
lies  to  the  Court  of  Appeals  composed  of  a  chief  justice 
and  two  associate  justices.  From  the  Court  of  Appeals 
in  certain  cases  an  appeal  or  writ  of  error  lies  to  the  Su- 
preme Court  of  the  United  States. 

The  Supreme  Court —Original  jurisdiction 

The  jurisdiction  of  the  Supreme  Court  is  of  two  kinds, — 
original  and  appellate.  The  appellate  jurisdiction  is,  in 
turn,  of  two  kinds;  that  coming  by  writ  of  error  to  the 
courts  of  the  States,  and  that  by  appeal  from  the  inferior 
Federal  tribunals.  The  original  jurisdiction  is  determined 
by  the  Constitution  which  provides  that  "In  all  cases 
affecting  ambassadors,  other  public  ministers  and  consuls, 


400  PRINCIPLES  OF  THE  CONSTITUTIONAL 

and  those  in  which  a  State  shall  be  a  party,  the  Supreme 
Court  shall  have  original  jurisdiction." 

It  has  been  held  that  it  is  not  competent  for  Congress 
to  give  to  the  Court  original  jurisdiction  in  other  than 
these  specifically  enumerated  cases.  This  doctrine  is 
deduced  from  the  constitutional  provision  that  "in  all 
other  cases  ....  the  Supreme  Court  shall  have  appellate 
jurisdiction,  both  as  to  law  and  fact,  with  such  exceptions 
and  under  such  regulations  as  the  Congress  shall  make."  4 

Inferior  courts  may  be  granted  jurisdiction  of  cases  within 

the  original  jurisdiction  of  the  Supreme  Court 
The  implication  from  the  foregoing,  especially  from  the 
last  clause,  might  seem  to  be  that  the  Supreme  Court  may 
not  take  appellate  jurisdiction  in  cases  in  which  it  might 
exercise  original  jurisdiction,  and,  therefore,  that  it  would 
not  be  within  the  power  of  Congress  to  give  to  the  in- 
ferior Federal  courts  original  jurisdiction  over  causes  cog- 
nizable in  the  first  instance  by  the  Supreme  Court.  The 
point  has  never  been  squarely  passed  upon  by  the  Supreme 
Court,  but  Congress  has  in  fact,  in  a  number  of  instances, 
granted  such  original  jurisdiction  to  inferior  Federal 
courts,  and  there  are  a  number  of  judicial  dicta  in  support 
of  the  constitutionality  of  the  practice.5 

Supreme  Court— Appellate  Jurisdiction 

The  appellate  jurisdiction  of  the  Supreme  Court,  to- 
gether with  the  entire  jurisdiction  of  all  the  inferior  Federal 

4  Art.  Ill,  §  2,  cl.  3.  See  Marbury  v.  Madison,  1  Cr.  137;  2  L.  ed. 
60,  and  Muskrat  v.  United  States,  219  U.  S.  346;  31  Sup.  Ct.  Rep. 
250;  55  L.  ed.  246. 

6  Cf.  Garland  and  Ralston,  Constitution  and  Jurisdiction  of  the 
United  States  Courts,  §  7.  See  Graham  v.  Strucken,  4  Blatch.  50; 
Ames  v.  Kansas,  111  U.  S.  449;  4  Sup.  Ct.  Rep.  437;  28  L.  ed.  482, 
and  United  States  v.  Louisiana,  123  U.  S.  32;  8  Sup.  Ct.  Rep.  17; 
31  L.  ed.  69. 


LAW  OF  THE  UNITED  STATES  401 

courts  is  wholly  within  the  control  of  Congress  under  the 
constitutional  provision  that  "the  judicial  power  of  the 
United  States  shall  be  vested  in  one  Supreme  Court,  and 
such  inferior  courts  as  the  Congress  may  from  time  to 
time  ordain  and  establish,"  and  that  "in  all  other  than 
original  cases  ....  the  Supreme  Court  shall  have  ap- 
pellate jurisdiction  both  as  to  law  and  fact,  with  such  ex- 
ceptions and  under  such  regulations  as  the  Congress  shall 
make." 

These  exceptions  and  regulations  which  Congress  is 
thus  authorized  to  make  have  reference  to  the  granting 
and  regulation  of  appeals  to  the  Supreme  Court.  Con- 
gress thus  may  prevent  the  exercise  of  appellate  juris- 
diction by  the  Supreme  Court  by  making  no  provision 
for  appeals  or  writs  of  error  from  the  lower  Federal  or 
from  the  State  courts,  either  by  failing  to  grant  original 
jurisdiction  to  the  inferior  Federal  courts,  or  by  providing 
that  their  jurisdiction,  when  granted,  shall  be  final. 

That  the  appellate  jurisdiction  of  the  Supreme  Court  is 
within  the  power  of  Congress  was  strikingly  manifested 
in  the  case  of  Ex  parte  McCardle.6  In  this  case  the  Su- 
preme Court  had  assumed  jurisdiction  by  appeal  from  a  Cir- 
cuit Court,  the  case  argued,  and  taken  under  advisement, 
but  while  still  undecided,  Congress  by  an  act  deprived  the 
court  of  appellate  jurisdiction  over  the  class  of  cases  to 
which  the  one  at  issue  belonged.  Thereupon  the  Supreme 
Court  dismissed  the  appeal  for  want  of  jurisdiction.  This 
congressional  action,  it  was  known,  had  been  taken  to 
prevent  the  court  from  passing  upon  the  constitutionality 
of  certain  "reconstruction"  measures.  The  court,  how- 
ever, said:  "We  are  not  at  liberty  to  inquire  into  the 
motives  of  the  legislature.  We  can  only  examine  into 
its  power  under  the  Constitution;  and  the  power  to  make 


6  7  Wall.  506;  19  L.  ed.  264. 
26 


402  PRINCIPLES  OF  THE  CONSTITUTIONAL 

exceptions  to  the  appellate  jurisdiction  of  this  court  is 
given  by  express  words." 

Appeals  from  the  District  Courts 

As  at  present  by  statute  provided,  the  Supreme  Court 
has  the  following  appellate  jurisdiction  with  reference 
to  the  lower  Federal  Courts. 

Appeals  or  writs  of  error  may  be  taken  from  the  Dis- 
trict Courts  direct  to  the  Supreme  Court  in  the  following 
cases : 

"In  any  case  in  which  the  jurisdiction  of  the  court  is  in 
issue;  in  which  case,  the  question  of  jurisdiction  alone  shall 
be  certified  to  the  Supreme  Court  from  the  court  below 
for  decision;  from  the  final  sentences  and  decrees  in  prize 
causes;  in  any  case  that  involves  the  construction  or  ap- 
plication of  the  Constitution  of  the  United  States;  in  any 
case  in  which  the  constitutionality  of  any  law  of  the 
United  States,  or  the  validity  or  construction  of  any  treaty 
made  under  its  authority  is  drawn  in  question;  and  in 
any  case  in  which  the  Constitution  or  law  of  a  State  is 
claimed  to  be  in  contravention  of  the  Constitution  of  the 
United  States." 

In  addition  to  the  foregoing  enumerated  in  the  act  of 
March  3,  1911  appeals  lie  in  bankruptcy  cases  and  in 
certain  cases  from  the  Court  of  Claims,  territorial  courts, 
and  Court  of  Appeals  of  the  District  of  Columbia.  The 
Supreme  Court  has  also  the  power  to  issue  writs  of  manda- 
mus, of  prohibition  to  District  Courts  in  admiralty  cases, 
and  of  certiorari  to  Circuit  Courts  of  Appeal  and  to  the 
Court  of  Appeals  of  the  District  of  Columbia. 

Appeals  from  Circuit  Courts  of  Appeals 

All  cases  in  the  Circuit  Courts  of  Appeals,  not  expressly 
made  final,  and  in  which  the  matter  in  controversy  ex- 
ceeds one  thousand  dollars  besides  costs,  may  be  reviewed 


LAW  OF  THE  UNITED  STATES  403 

by  the  Supreme  Court  by  appeal  or  writ  of  error.  Inas- 
much, however,  as  most  of  the  judgments  and  decisions 
of  the  Circuit  Courts  of  Appeals  are  declared  final  (namely, 
all  cases  in  which  jurisdiction  is  dependent  entirely  upon 
the  citizenship  of  the  parties,  and  all  patent,  criminal, 
revenue  and  admiralty  cases)  this  appellate  jurisdiction 
of  the  Supreme  Court  is,  relatively,  inconsiderable. 

The  Circuit  Court  of  Appeals  may,  however,  in  any  case 
in  which  its  judgment  or  decree  is  final,  certify  to  the  Su- 
preme Court  any  question  of  law  upon  which  it  wishes  the 
judgment  of  the  Supreme  Court;  or  the  Supreme  Court 
may  at  any  time  by  certiorari  or  otherwise  require  such 
cases  to  be  certified  to  it  for  review  and  final  determi- 
nation. 

Writs  of  error  to  State  courts 

Appellate  jurisdiction  is  exercised  by  the  Supreme  Court 
by  writs  of  error  directed  to  the  highest  courts  of  the  State 
in  which  a  decision  can  be  had,  in  all  cases  "  where  is 
drawn  in  question  the  validity  of  a  treaty  or  statute  of, 
or  an  authority  exercised  under,  the  United  States,  and 
the  decision  is  against  their  validity;  or  where  is  drawn 
in  question  the  validity  of  a  statute  of,  or  an  authority 
exercised  under  any  State,  on  the  ground  of  their  being 
repugnant  to  the  Constitution,  treaties,  or  laws  of  the 
United  States,  and  the  decision  is  in  favor  of  their  validity, 
or  where  any  title,  right,  privilege  or  immunity  is  claimed 
under  the  Constitution,  or  any  treaty  or  statute  of,  or 
commission  held  or  authority  exercised  under,  the  United 
States,  and  the  decision  is  against  the  title,  right,  privilege 
or  immunity  specially  set  up  or  claimed,  by  either  party, 
under  such  constitution,  treaty,  statute,  commission  or 
authority." 

In  such  cases  the  Supreme  Court  may  affirm,  reverse  or 
modify  the  judgment  or  decree  of  the  State  court,  and 


404  PRINCIPLES  OF  THE  CONSTITUTIONAL 

may  at  its  discretion  award  execution,  or  remand  the 
same  to  the  court  from  which  it  was  removed. 

In  cases  brought  to  the  Supreme  Court  by  writs  of  error 
from  the  State  courts,  the  judgment  of  these  courts  will 
not  be  reversed,  whatever  construction  they  may  have 
given  to  an  alleged  Federal  right,  if  it  appear  that  there 
was  a  local  law  which,  rightly  interpreted,  would  sustain 
the  judgment  entered  or  decree  given. 

In  De  Saussure  v.  Gaillard  7  the  general  rule  is  declared 
that  to  give  the  Supreme  Court  jurisdiction  on  a  writ 
of  error  to  a  State  court,  "it  must  appear  affirmatively 
not  only  that  a  Federal  question  was  presented  for  deci- 
sion to  the  highest  court  of  the  State  having  jurisdiction, 
but  that  its  decision  was  necessary  to  the  determination 
of  the  cause,  and  that  it  was  actually  decided,  or  that  the 
judgment  as  rendered  could  not  have  been  given  without 
deciding  it."  And  in  Johnson  v.  Risk  8  this  rule  is  supple- 
mented by  the  declaration  that:  "Where  there  is  a  Federal 
question,  but  the  case  may  have  been  disposed  of  on  some 
other  independent  ground,  and  it  does  not  appear  on  which 
of  the  two  grounds  the  judgment  was  based,  then,  if  the 
independent  ground  was  not  a  good  and  valid  one,  suffi- 
cient of  itself  to  sustain  the  judgment,  this  court  will  take 
jurisdiction  of  the  case,  because,  when  put  to  inference 
as  to  what  points  the  State  courts  decided,  we  ought  not 
to  assume  that  it  proceeded  on  ground  clearly  untenable. 
But  where  a  defense  is  distinctly  made,  resting  on  local 
statutes,  we  should  not,  in  order  to  reach  a  Federal  ques- 
tion, resort  to  critical  conjecture  as  to  the  action  of  the 
court  in  the  disposition  of  such  defense." 

In  order  that  this  appellate  jurisdiction  may  be  effectual 
the  judiciary  act  also  provides  that  instead  of  remanding 
the  cause  to  the  State  court  for  a  final  decision  therein, 

7 127  U.  S.  216;  8  Sup.  Ct.  Rep.  1053;  32  L.  ed.  125. 
8 137  U.  S.  300;  11  Sup.  Ct.  Rep.  Ill;  34  L.  ed.  683. 


LAW  OF  THE  UNITED  STATES  405 

the  Supreme  Court  may  at  their  discretion,  if  the  cause 
has  been  once  before  remanded,  proceed  to  a  final  disposi- 
tion of  the  same  and  award  execution. 

These  provisions  have  remained  substantially  unchanged 
since  their  enactment  to  the  present  day. 

It  will  be  observed  that  provision  for  writs  of  error  from 
the  Federal  Supreme  Court  is  made  only  for  those  cases 
in  which  the  judgment  in  the  state  tribunals  is  adverse  to 
the  alleged  Federal  right,  privilege  or  immunity.  Where 
the  State  decision  is  favorable,  there  is,  of  course,  no  need, 
based  upon  the  principle  of  Federal  supremacy,  for  a 
Federal  review. 

The  constitutionality  of  this  section  of  the  Judiciary 
Act  was  affirmed  by  the  Supreme  Court  in  1816  in  Martin 
v.  Hunter's  Lessee,9  and  again,  in  Cohens  v.  Virginia,10 
decided  in  1821. 

Circuit  Courts  of  Appeals  —Jurisdiction 

The  Circuit  Courts  of  Appeals  have  appellate  jurisdic- 
tion over  all  cases  heard  in  the  District  Courts  except  those 
which  are  carried  to  the  Supreme  Court.  The  judgments 
and  decrees  thus  rendered  upon  appeal  are  final  (except 
when  certified  to  the  Supreme  Court)  in  all  cases  in  which 
the' jurisdiction  is  dependent  entirely  upon  the  opposite 
parties  to  the  suit  being  aliens  and  citizens  of  the  United 
States,  or  citizens  of  different  States ;  as  well  as  in  all  cases 
arising  under  the  patent,  copyright,  revenue,  criminal 
and  admiralty  laws. 

District  Courts— Jurisdiction 

Excepting  the  less  important  classes  of  cases,  the  juris- 
diction of  the  District  Courts,  as  determined  by  statute  is 


9 1  Wh.  304;  4  L.  ed.  97. 
106Wh.  264;  5  L.  ed.  257. 


406  PRINCIPLES  OF  THE  CONSTITUTIONAL 

as  follows:  Being  the  lowest  of  the  Federal  Courts,  they 
have  no  appellate  jurisdiction  with  reference  to  the  other 
Federal  Courts.  They  have,  however,  certain  appellate 
powers  from  the  judgments  and  orders  of  the  United 
States  commissioners  in  cases  arising  under  the  Chinese  ex- 
clusion laws.  Appeals  lie  to  the  District  Court  of  Wyoming 
from  judgments  in  cases  of  conviction,  before  the  com- 
missioners appointed  under  the  act  for  the  protection  of 
birds  and  animals  or  the  punishment  of  crime  in  the 
Yellowstone  Natural  Park.  The  original  jurisdiction  of 
the  District  Courts,  as  set  out  in  §  24  of  the  act  of 
March  3,  1911,  is  given  in  the  footnote.11  The  jurisdiction 

11  First.  Of  all  suits  of  a  civil  nature,  at  common  law  or  in  equity, 
brought  by  the  United  States,  or  by  any  officer  thereof  authorized  by 
law  to  sue,  or  between  citizens  of  the  same  State  claiming  lands  under 
grants  from  different  States;  or,  where  the  matter  in  controversy 
exceeds,  exclusive  of  interest  and  costs,  the  sum  or  value  of  three 
thousand  dollars,  and  (a)  arises  under  .the  Constitution  or  laws  of  the 
United  States,  or  treaties  made,  or  which  shall  be  made,  under  their 
authority,  or  (b)  is  between  citizens  of  different  States,  or  (c)  is 
between  citizens  of  a  State  and  foreign  States,  citizens,  or  subjects. 
No  district  court  shall  have  cognizance  of  any  suit  (except  upon 
foreign  bills  of  exchange)  to  recover  upon  any  promissory  note  or 
other  chose  in  action  in  favor  of  any  assignee,  or  of  any  subsequent 
holder  if  such  instrument  be  payable  to  bearer  and  be  not  made  by 
any  corporation,  unless  such  suit  might  have  been  prosecuted  in 
such  court  to  recover  upon  said  note  or  other  chose  in  action  if  no 
assignment  had  been  made:  Provided,  however,  That  the  foregoing 
provision  as  to  the  sum  or  value  of  the  matter  in  controversy  shall 
not  be  construed  to  apply  to  any  of  the  cases  mentioned  in  the  suc- 
ceeding paragraphs  of  this  section. 

Second.  Of  all  crimes  and  offenses  cognizable  under  the  authority 
of  the  United  States. 

Third.  Of  all  civil  causes  of  admiralty  and  maritime  jurisdiction, 
saving  to  suitors  in  all  cases  the  right  of  a  common-law  remedy  where 
the  common  law  is  competent  to  give  it;  of  all  seizures  on  land  or 
waters  not  within  admiralty  and  maritime  jurisdiction;  of  all  prizes 
brought  into  the  United  States;  and  of  all  proceedings  for  the  con- 
demnation of  property  taken  as  prize. 


LAW  OF  THE  UNITED  STATES  407 

of  the  District  Courts  over  suits  removed  into  them  from 
the  State  Courts  is  considered  later. 

Court  of  Claims —Jurisdiction 

This  court,  established  in  1855,  has  general  jurisdiction 
of  all  "  claims  founded  upon  the  Constitution  of  the  United 


Fourth.  Of  all  suits  arising  under  any  law  relating  to  the  slave 
trade. 

Fifth.  Of  all  cases  arising  under  any  law  providing  for  internal 
revenue,  or  from  revenue  from  imports  or  tonnage,  except  those 
cases  arising  under  any  law  providing  revenue  from  imports,  juris- 
diction of  which  has  been  conferred  upon  the  Court  of  Customs 
Appeals. 

Sixth.  Of  all  cases  arising  under  the  postal  laws. 

Seventh.  Of  all  suits  at  law  or  in  equity  arising  under  the  patent, 
the  copyright,  and  the  trade-mark  laws. 

Eighth.  Of  all  suits  and  proceedings  arising  under  any  law  regu- 
lating commerce,  except  those  suits  and  proceedings  exclusive  juris- 
diction of  which  has  been  conferred  upon  the  Commerce  Court. 

Ninth.  Of  all  suits  and  proceedings  for  the  enforcement  of  pen- 
alties and  forfeitures  incurred  under  any  law  of  the  United  States. 

Tenth.  Of  all  suits  by  the  assignee  of  any  debenture  for  drawback 
of  duties,  issued  under  any  law  for  the  collection  of  duties,  against 
the  person  to  whom  such  debenture  was  originally  granted,  or  against 
any  indorser  thereof,  to  recover  the  amount  of  such  debenture. 

Eleventh.  Of  all  suits  brought  by  any  person  to  recover  damages 
for  any  injury  to  his  person  or  property  on  account  of  any  act  done 
by  him,  under  any  law  of  the  United  States,  for  the  protection  or 
collection  of  any  of  the  revenues  thereof,  or  to  enforce  the  right  of 
citizens  of  the  United  States  to  vote  in  the  several  States. 

Twelfth.  Of  all  suits  authorized  by  law  to  be  brought  by  any 
person  for  the  recovery  of  damages  on  account  of  any  injury  to  his 
person  or  property,  or  of  the  deprivation  of  any  right  or  privilege  of 
a  citizen  of  the  United  States,  by  any  act  done  in  furtherance  of  any 
conspiracy  mentioned  in  section  nineteen  hundred  and  eighty, 
Revised  Statutes. 

Thirteenth.  Of  all  suits  authorized  by  law  to  be  brought  against 
any  person  who,  having  knowledge  that  any  of  the  wrongs  mentioned 
in  section  nineteen  hundred  and  eighty,  Revised  Statutes,  are  about 
to  be  done,  and,  having  power  to  prevent  or  aid  in  preventing  the 


408  PRINCIPLES  OF  THE  CONSTITUTIONAL 

States  or  any  law  of  Congress,  except  for  pensions,  or 
upon  any  regulation  of  an  executive  department,  or  upon 
any  contract,  express  or  implied,  with  the  Government 

same,  neglects  or  refuses  so  to  do,  to  recover  damages  for  any  such 
wrongful  act. 

Fourteenth.  Of  all  suits  at  law  or  in  equity  authorized  by  law  to 
be  brought  by  any  person  to  redress  the  deprivation,  under  color  of 
any  law,  statute,  ordinance,  regulation,  custom,  or  usage  of  any 
State,  of  any  right,  privilege,  or  immunity,  secured  by  the  Constitu- 
tion of  the  United  States,  or  of  any  right  secured  by  any  law  of  the 
United  States  providing  for  equal  rights  of  citizens  of  the  United 
States,  or  of  all  persons  within  the  jurisdiction  of  the  United  States. 

Fifteenth.  Of  all  suits  to  recover  possession  of  any  office,  except 
that  of  elector  of  President  or  Vice  President,  Representative  in  or 
Delegate  to  Congress,  or  member  of  a  State  legislature,  authorized 
by  law  to  be  brought,  wherein  it  appears  that  the  sole  question  touch- 
ing the  title  to  such  office  arises  out  of  the  denial  of  the  right  to  vote 
to  any  citizen  offering  to  vote,  on  account  of  race,  color,  or  previous 
condition  of  servitude:  Provided,  That  such  jurisdiction  shall  extend 
only  so  far  as  to  determine  the  rights  of  the  parties  to  such  office  by 
reason  of  the  denial  of  the  right  guaranteed  by  the  Constitution  of 
the  United  States,  and  secured  by  any  law,  to  enforce  the  right  of 
citizens  of  the  United  States  to  vote  in  all  the  States. 

Sixteenth.  Of  all  cases  commenced  by  the  United  States,  or  by 
direction  of  any  officer  thereof,  against  any  national  banking  asso- 
ciation, and  cases  for  winding  up  the  affairs  of  any  such  bank;  and 
of  all  suits  brought  by  any  banking  association  established  in  the 
district  for  which  the  court  is  held,  under  the  provisions  of  title 
"National  Banks,"  Revised  Statutes,  to  enjoin  the  Comptroller  of 
the  Currency,  or  any  receiver  acting  under  his  direction,  as  provided 
by  said  title.  And  all  national  banking  associations  established 
under  the  laws  of  the  United  States  shall,  for  the  purposes  of  all  other 
actions  by  or  against  them,  real,  personal,  or  mixed,  and  all  suits  in 
equity,  be  deemed  citizens  of  the  States  in  which  they  are  respec- 
tively located. 

Seventeenth.  Of  all  suits  brought  by  any  alien  for  a  tort  only,  in 
violation  of  the  laws  of  nations  or  of  a  treaty  of  the  United  States. 

Eighteenth.  Of  all  suits  against  consuls  and  vice  consuls. 

Nineteenth.  Of  all  matters  and  proceedings  in  bankruptcy. 

Twentieth.  Concurrent  with  the  Court  of  Claims,  of  all  claims  not 
exceeding  ten  thousand  dollars  founded  upon  the  Constitution  of  the 


LAW  OF  THE  UNITED  STATES  409 

of  the  United  States,  or  for  damages,  liquidated  or  unli- 
quidated, in  cases  not  sounding  in  tort,  in  respect  of  which 
claims  the  party  would  be  entitled  to  redress  against  the 

United  States  or  any  law  of  Congress,  or  upon  any  regulation  of  an 
Executive  Department,  or  upon  any  contract,  express  or  implied, 
with  the  Government  of  the  United  States,  or  for  damages,  liquidated 
or  unliquidated,  in  cases  not  sounding  in  tort,  in  respect  to  which 
claims  the  party  would  be  entitled  to  redress  against  the  United 
States,  either  in  a  court  of  law,  equity,  or  admiralty,  if  the  United 
States  were  suable,  and  of  all  set-offs,  counterclaims,  claims  for  dam- 
ages, whether  liquidated  or  unliquidated,  or  other  demands  whatso- 
ever on  the  part  of  the  Government  of  the  United  States  against  any 
claimant  against  the  Government  in  said  court:  Provided,  however, 
That  nothing  in  this  paragraph  shall  be  construed  as  giving  to  either 
the  district  courts  or  the  Court  of  Claims  jurisdiction  to  hear  and 
determine  claims  growing  out  of  the  late  Civil  War,  and  commonly 
known  as  "war  claims,"  or  to  hear  and  determine  other  claims  which 
had  been  rejected  or  reported  on  adversely  prior  to  the  third  day  of 
March,  eighteen  hundred  and  eighty-seven,  by  any  court,  depart- 
ment, or  commission  authorized  to  hear  and  determine  the  same,  or 
to  hear  and  determine  claims  for  pensions;  or  as  giving  to  the  district 
courts  jurisdiction  of  cases  brought  to  recover  fees,  salary,  or  com- 
pensation for  official  services  of  officers  of  the  United  States  or 
brought  for  such  purpose  by  persons  claiming  as  such  officers  or  as 
assignees  or  legal  representatives  thereof;  but  no  suit  pending  on  the 
twenty-seventh  day  of  June,  eighteen  hundred  and  ninety-eight, 
shall  abate  or  be  affected  by  this  provision.  All  suits  brought  and 
tried  under  the  provisions  of  this  paragraph  shall  be  tried  by  the 
court  without  a  jury. 

Twenty-first.  Of  proceedings  in  equity,  by  writ  of  injunction,  to 
restrain  violations  of  the  provisions  of  laws  of  the  United  States  to 
prevent  the  unlawful  inclosure  of  public  lands;  and  it  shall  be  suffi- 
cient to  give  the  court  jurisdiction  if  service  of  original  process  be  had 
in  any  civil  proceeding  on  any  agent  or  employee  having  charge  or 
control  of  the  inclosure. 

Twenty-second.  Of  all  suits  and  proceedings  arising  under  any 
law  regulating  the  immigration  of  aliens,  or  under  the  contract  labor 
laws. 

Twenty-third.  Of  all  suits  and  proceedings  arising  under  any  law 
to  protect  trade  and  commerce  against  restraints  and  monopolies. 

Twenty-fourth.  Of  all  actions,  suits,  or  proceedings  involving  the 


410  PRINCIPLES  OF  THE  CONSTITUTIONAL 

United  States,  either  in  a  court  of  law,  equity,  or  ad- 
miralty, if  the  United  States  were  suable."  Exception  is, 
however,  made  of  "  claims  growing  out  of  the  late  civil 
war,"  and  "  other  claims  which  have  hitherto  been  re- 
jected, or  reported  on  adversely  by  any  court,  department 
or  commission  authorized  to  hear  and  determine  the 
same." 

As  to  the  foregoing  the  District  Courts  are  given  concur- 
rent jurisdiction  where  the  amount  does  not  exceed  $10,000. 
Since  the  so-called  Bowman  Act  of  March  3,  1883,  the 
head  of  an  executive  department  may  refer  to  the  court 
any  claim  or  matter  pending  in  his  department  which 
involves  controverted  questions  of  fact  or  of  law,  and  the 
court  is  directed  to  report  its  findings  of  facts  and  conclu- 
sions of  law  to  the  department  for  its  guidance.  The  act 
also  provides  that  either  House  of  Congress  or  any  of  its 
committees  may  refer  any  claim  or  matter  to  the  court  for 
the  determination  of  the  facts  involved,  and  for  report 
of  the  same  to  Congress  for  such  action  thereupon  as  it 
may  see  fit  to  take. 

All  causes  are  tried  by  the  court  without  a  jury.  All 
claims  not  brought  within  six  years  of  the  date  of  their 
accruing  are  barred  from  prosecution. 

Court  of  Customs  Appeals — Jurisdiction 

To  this  court  is  given  exclusive  appellate  jurisdiction 
to  review  final  decisions  of  the  Board  of  General  Appraisers 
of  Customs  in  all  cases  as  to  the  construction  of  the  law, 
and  the  facts  respecting  the  classification  of  merchandise 
and  the  rates  of  duty  imposed  thereon  under  such  classi- 

right  of  any  person,  in  whole  or  in  part  of  Indian  blood  or  descent,  to 
any  allotment  of  land  under  any  law  or  treaty. 

Twenty-fifth.  Of  suits  in  equity  brought  by  any  tenant  in  common 
or  joint  tenant  for  the  partition  of  lands  in  cases  where  the  United 
States  is  one  of  such  tenants  in  common  or  joint  tenants,  such  suits 
to  be  brought  in  the  district  in  which  such  land  is  situate. 


LAW  OF  THE  UNITED  STATES  411 

fication,  and  the  fees  and  charges  connected  therewith, 
and  all  appealable  questions  as  to  the  laws  and  regulations 
governing  the  collection  of  the  customs  revenues. 

The  Commerce  Court 

This  court  has  jurisdictions  over:  " First.  All  cases 
for  the  enforcement,  otherwise  than  by  adjudication  and 
collection  of  a  forfeiture  or  penalty  or  by  infliction  of 
criminal  punishment,  of  any  order  of  the  Interstate  Com- 
merce Commission  other  than  for  the  payment  of  money. 

"Second.  Cases  brought  to  enjoin,  set  aside,  annul,  or 
suspend  in  whole  or  in  part  any  order  of  the  Interstate 
Commerce  Commission. 

"  Third.  Such  cases  as  by  section  three  of  the  Act  en- 
titled 'An  Act  to  further  regulate  commerce  with  foreign 
nations  and  among  the  States,'  approved  February  nine- 
teenth, nineteen  hundred  and  three,  are  authorized  to  be 
maintained  in  a  circuit  court  of  the  United  States. 

"Fourth.  All  such  mandamus  proceedings  as  under  the 
provisions  of  section  twenty  or  section  twenty-three  of  the 
Act  entitled  'An  Act  to  regulate  commerce,'  approved 
February  fourth,  eighteen  hundred  and  eighty-seven,  as 
amended,  are  authorized  to  be  maintained  in  a  circuit 
Court  of  the  United  States." 

Jurisdiction  of  Federal  courts  based  upon  diversity  of  citizen- 
ship 

By  the  Constitution  jurisdiction  in  the  Federal  Courts 
may  be  founded  upon  either  the  subject-matters  enumer- 
ated in  Art.  Ill,  or  upon  the  character  of  the  parties.  This 
latter  class  of  cases  include  controversies  to  which  the 
United  States  is  a  party,  or  between  two  or  more  States, 
between  a  State  and  citizens  of  another  State,  between 
citizens  of  different  States,  or  between  a  State  or  a  citizen 
thereof  and  foreign  States,  citizens  or  subjects. 


412  PRINCIPLES  OF  THE  CONSTITUTIONAL 

Within  the  meaning  of  the  clause  of  the  Constitution 
extending  the  Federal  judicial  power  to  suits  between 
citizens  of  different  States  it  has  been  held  that  any  person 
who  is  a  citizen  of  the  United  States,  native  or  naturalized 
is  a  citizen  of  the  State  in  which  he  is  domiciled.  United 
States  citizens  domiciled  in  the  Territories  or  the  District 
of  Columbia  do  not  come  within  this  rule.12 

In  Strawbridge  v.  Curtis  13  it  was  held  that  if  there  be 
two  or  more  joint  plaintiffs  and  two  or  more  joint  defend- 
ants, each  of  the  plaintiffs  must,  by  reason  of  citizenship 
of  another  State,  be  capable  of  suing  each  of  the  defendants 
in  a  Federal  Court,  in  order  to  sustain  the  Federal  juris- 
diction. This  doctrine,  thus  declared,  has  never  been 
departed  from. 

Citizenship  of  corporations 

It  was  early  decided  that  a  corporation  is  not  a  citizen 
within  the  meaning  of  the  clause  providing  that  the 
Federal  judicial  power  shall  extend  to  controversies  be- 
tween citizens  of  different  States,  and  in  theory  this  is 
still  the  law;  but  if  each  corporation  was  conclusively  pre- 
sumed to  be  a  citizen  of  the  State  by  which  it  is  chartered 
the  practical  result  would  be  precisely  the  same  as  it  now 
is  and  for  many  years  has  in  fact  been.  Until  about  1840, 
the  doctrine  prevailed  that  a  corporation  being  an  arti- 
ficial unit,  the  court  would  look  behind  its  corporate  per- 
sonality to  see  whether  the  individuals  of  which  it  was 
composed  were,  each  and  every  one  of  them,  citizens  of 
a  State  different  from  that  of  each  of  the  parties  sued.14 
But  in  later  cases  this  doctrine  was  repudiated,  and  the 
principle  stated,  first,  that  the  citizenship  of  the  individuals 


12  New  Orleans  v.  Winter,  1  Wh.  91;  4  L.  ed.  44;  Hepburn  v.  Ellzey, 
2  Cr.  445;  2  L.  ed.  332. 

13  3  Cr.  267;  2  L.  ed.  435. 

14  Bank  of  United  States  v.  Deveaux,  5  Cr.  61;  3  L.  ed.  38. 


LAW  OF  THE  UNITED  STATES  413 

composing  the  corporations  is  to  be  presumed  to  be  that 
of  the  State  by  which  the  company  was  chartered,  and, 
still  later,  that  this  presumption  is  one  that  may  not  be 
rebutted.15 

A  corporation  organized  in  two  or  more  States  cannot 
sue  in  the  Federal  courts  a  citizen  of  any  one  of  those 
States.16 

National  banks 

When  the  present  national  banking  system  was  estab- 
lished, and  for  more  than  twenty  years  afterwards,  an 
express  statute  authorized  the  National  Banks  to  sue  and 
be  sued  in  the  Federal  courts.  Since  1887  it  has  been 
provided  by  law  that  for  the  purposes  of  the  jurisdiction 
of  the  Federal  Courts  national  banks  are  to  be  held  to  be 
citizens  of  the  States  in  which  they  are  respectively  located, 
and  the  Federal  Courts  have,  in  general,  no  other  juris- 
diction over  controversies  to  which  they  are  a  party  than 
that  which  they  would  have  were  such  banks  citizens  of 
such  States.17 

Federally  chartered  corporations 

It  has  also  been  held  that  a  corporation  chartered  by 
the  United  States,  except  as  specifically  restricted  by 
Congress,  has  the  right  to  invoke  the  jurisdiction  of  the 
Federal  Courts  in  respect  to  any  litigation  which  it  may 
have.18 

Fictitious  citizenship 

Federal  jurisdiction  may  not  be  created  by  the  fictitious 
assignment  of  the  cause  of  action,  but  where  the  transfer 
is  real,  and  for  a  consideration,  Federal  jurisdiction  will 

15  Ohio  &  Miss.  R.  R.  Co.  v.  Wheeler,  1  Black.  286;  17  L.  ed.  130. 

16  Idem. 

17  24  Stat.  at  L.  552. 

18  Pacific  Railroad  Removal  Cases,  115  U.  S.  1;  5  Sup.  Ct.  Rep. 
1113;  29  L.  ed.  319. 


414  PRINCIPLES  OF  THE  CONSTITUTIONAL 

attach  even  though  the  transfer  is  shown  to  have  been 
made  with  this  end  in  view.19 

In  order  that  there  may  be  Federal  jurisdiction,  mere 
diversity  of  residence  is  not  sufficient.  There  must  be 
diversity  of  citizenship,  and  this  fact  must  affirmatively 
appear  in  the  pleadings.20 

Federal  jurisdiction  of  cases  arising  under  the  Constitution, 
treaties  and  acts  of  Congress 

The  Constitution  provides  that  the  Federal  jurisdiction 
shall  extend  to  "all  cases,  in  law  or  equity,  arising  under 
this  Constitution,  the  laws  of  the  United  States,  and 
treaties  made,  or  which  shall  be  made  under  their 
authority." 

In  order  that  Federal  judicial  power  may  attach  under 
this  grant,  it  is  necessary  that  the  controversy  shall  con- 
stitute what  in  law  is  technically  known  as  a  "case;" 
and  that,  for  its  decision,  the  enforcement  of  some  Federal 
right  be  substantially  involved. 

A  case  is  not  brought  within  the  Federal  judicial  cog- 
nizance simply  because,  in  the  progress  of  the  litigation, 
it  becomes  necessary  to  refer  to  or  give  a  construction  to 
the  Federal  Constitution  or  laws  of  the  United  States. 
"The  decision  of  the  case  must  depend  upon  that  con- 
struction. The  suit  must,  in  part  at  least,  arise  out  of  a 
controversy  between  the  parties  in  regard  to  the  operation 
and  effect  of  the  Constitution  or  laws  upon  the  facts  in- 
volved." 21 


19  Dickerman  v.  Northern  Trust  Co.,  176  U.  S.  181;  20  Sup.  Ct. 
Rep.  311;  44  L.  ed.  423. 

20  Wolfe  v.  Hartford  Life  Ins.  Co.,  148  U.  S.  389;  13  Sup.  Ct.  Rep. 
602;  37  L.  ed.  493. 

21  Gold  Washing  &  Water  Co.  v.  Keyes,  6  Otto,  199;  24  L.  ed.  656. 
For  a  general  review  of  the  extent  of  the  Federal  judicial  power  as 
determined  by  subject-matter,  see  Shoshone  Mining  Co.  v.  Rutter, 
177  U,  S,  505;  20  Sup.  Ct.  Rep.  726;  44  L.  ed.  864. 


LAW  OF  THE  UNITED  STATES  415 

Removal  of  suits  from  State  to  Federal  courts 

The  protection  of  Federal  law  and  Federal  rights  against 
possible  invasion  by  State  law  and  State  authorities  may 
be  secured  in  three  ways.  First,  by  vesting  in  the  Federal 
Courts  the  exclusive  cognizance  of  all  cases  in  which  the 
enforcement  of  Federal  rights  created  or  recognized  by  the 
Constitution,  treaties,  or  congressional  statutes,  is  in- 
volved; Second,  by  providing  that  all  cases,  involving 
these  rights,  which  originate  and  are  prosecuted  in  the 
State  courts  may  be  finally  appealed  to  the  Federal  Courts; 
and,  Third,  by  providing  that  such  cases  begun  in  the 
State  courts  may  at  some  stage  prior  to  final .  determina- 
tion thereof,  be  removed  into  the  Federal  courts.  All  these 
methods  have  been  employed  since  the  beginning  of  the 
present  government. 

In  the  early  years  under  the  Constitution  the  chief  re- 
liance for  the  ultimate  protection  of  Federal  rights  against 
State  invasion  was  upon  the  right  of  appeal  to  the  Supreme 
Court  of  the  United  States  by  writ  of  error  to  the  State 
courts  having  final  jurisdiction  of  a  case  in  which  Federal 
rights,  privileges,  and  immunities  were  involved,  and  in 
which  the  final  decision  was  adverse  to  the  Federal  rights, 
privileges,  and  immunities  claimed.  With  respect  to  very 
many  matters  of  which  jurisdiction  might  have  been 
granted  to  the  inferior  Federal  Courts,  no  such  jurisdiction 
was  given  by  Congress  to  the  Federal  courts,  these  suits 
being  left  to  the  adjudication  of  the  State  Courts,  with 
the  provision  that  certain  cases  might  be  removed  into 
the  Federal  Courts,  and  that  in  all  cases  not  so  removed 
or  removable,  appeal  might  be  had  to  the  Federal  Supreme 
Court  when  the  final  State  judgment  was  adverse  to  the 
Federal  right,  privilege,  or  immunity. 

Prior  to  1887  by  successive  Acts  of  Congress  the  juris- 
diction of  the  inferior  Federal  Courts  had  been  amplified 
and  the  right  of  removal  had  been  broadened,  but  in  that 


416  PRINCIPLES  OF  THE  CONSTITUTIONAL 

year  was  passed  an  Act  the  purpose  of  which  was  to  limit 
the  right  to  bring  a  suit  in  the  Circuit  Court  and  the  right 
to  remove  into  that  court  a  suit  brought  in  a  State  Court. 
In  construing  this  statute  the  Supreme  Court  has  uni- 
formly kept  in  mind  that  its  object  is  to  limit  the  jurisdic- 
tion of  the  Federal  Courts. 

The  State  Courts  are  not  excluded  from  the  exercise 
of  jurisdiction  with  reference  to  all  of  the  classes  of  cases 
placed  by  the  Constitution  within  the  possible  cognizance 
of  the  Federal  Courts.  Over  a  very  large  proportion  of 
these  cases  Congress  has  not  seen  fit  to  confer  jurisdiction 
on  any  Federal  Court.  As  to  certain  of  these  cases  the 
Federal  jurisdiction  is  held  to  be  necessarily  exclusive, 
and  it  may  by  Congress  be  made  so  as  to  all,  but  as  to 
others  the  State  Courts  may  be  permitted  to  adjudicate 
concurrently.  That  is  to  say,  as  to  these  cases,  the  two 
systems  of  courts  may  at  the  same  time  have  equal  auth- 
ority, the  suitors  being  given  the  option  as  to  which  tri- 
bunals shall  be  resorted  to. 

This  concurrence  of  jurisdiction  is  founded  upon  the 
fact  as  declared  in  Claflin  v.  Houseman  22  that  while  every 
citizen  of  a  State  is  a  citizen  of  two  distinct  sovereign- 
ties, these  sovereignties  are  not  foreign  to  each  other  but 
have  concurrent  authority  as  to  place  and  persons  though 
distinct  as  to  subject-matters.  Therefore,  as  the  court 
say:  "Legal  or  equitable  rights,  acquired  under  either 
system  of  laws,  may  be  enforced  in  any  court  of  either 
sovereignty  competent  to  hear  and  determine  such  kind 
of  rights  and  not  restrained  by  its  Constitution  in  the 
exercise  of  such  jurisdiction.  Thus  a  legal  or  equitable 
right :  acquired  under  State  laws,  may  be  prosecuted  in  the 
State  courts,  and  also,  if  the  parties  reside  in  different 
States,  in  the  Federal  courts.  So  rights,  whether  legal 

22  93  U.  S.  130;  23  L.  ed.  833.  See,  also,  The  Moses  Taylor,  4 
Wall.  411;  18  L.  ed,  397, 


LAW  OF  THE  UNITED  STATES  417 

or  equitable,  acquired  under  the  laws  of  the  United  States, 
may  be  prosecuted  in  the  United  States  courts,  or  in  the 
State  courts,  competent  to  decide  rights  of  the  like  charac- 
ter and  class;  subject,  however,  to  this  qualification,  that 
where  a  right  arises  under  the  law  of  the  United  States, 
Congress  may,  if  it  see  fit,  give  to  the  Federal  courts  ex- 
exclusive  jurisdiction." 

Statutory  provision  for  removal  from  State  to  Federal  courts 

By  the  original  Judiciary  Act  of  1789  it  was  provided 
that  civil  suits  brought  in  State  courts  might  be  removed 
into  the  Federal  courts  only  in  case  all  the  necessary  de- 
fendants were  aliens  or  all  the  necessary  plaintiffs  were 
citizens  of  the  State  and  all  the  necessary  defendants  were 
citizens  of  another  State  and  all  joined  in  the  petition  for 
removal.  By  the  act  of  1866  individual  defendants  were 
permitted  to  remove  if  their  interests  could  be  properly 
adjudicated  without  the  presence  of  the  other  defendants. 

By  act  of  1867  either  a  plaintiff  or  defendant  could  re- 
move upon  affidavit  that  local  prejudice  would  prevent  a 
fair  trial.  By  act  of  1887  this  right  was  limited  to  the 
defendant.  By  act  of  1875  it  was  declared  that  either 
defendant  or  plaintiff  might  remove  any  case  of  which 
the  Federal  Circuit  and  the  State  courts  had  concurrent 
jurisdiction.  By  acts  of  1887  and  1888  the  jurisdiction 
of  the  Circuit  Courts  was  considerably  reduced,  which  of 
course  had  the  effect  of  reducing  the  rights  of  removal 
provided  for  by  the  act  of  1875. 

The  laws  at  present  governing  removal  of  suits  to  the 
Federal  Circuit  Courts  are  contained  in  chapter  three  of 
the  act  of  March  3,  1911. 

By  the  original  Judiciary  Act  Congress  did  not,  as  it 

might  have  done,  endow  the  lower  Federal  courts  with  a 

general  jurisdiction  in  proceedings  against  Federal  officers 

based  upon  their  official  acts.    By  the  famous  Force  Act 

27 


418  PRINCIPLES  OF  THE  CONSTITUTIONAL 

of  1833,  however,  an  act  passed  at  the  time  of  South  Caro- 
lina's attempted  nullification  of  the  United  States  tariff 
law,  it  was  provided  that  "when  any  civil  suit  or  criminal 
prosecution  is  commenced  in  any  court  of  a  State  against 
any  officer  appointed  under,  or  acting  by  authority  of, 
any  revenue  law  of  the  United  States,  now  or  hereafter 
enacted,  or  against  any  person  acting  by  or  under  authority 
of  any  such  officer,  or  on  account  of  any  act  done  under 
color  of  his  office,"  the  case,  at  the  defendant's  instance, 
might  be  at  once  removed  from  the  State  to  the  Federal 
courts  for  trial. 

This  act  has  been  from  time  to  time  amended,  and  now 
forms  §  33  of  the  act  of  March  3,  1911.  Its  constitu- 
tionality was  first  judicially  examined  by  the  Supreme 
Court  in  Tennessee  v.  Davis.23  In  this  case  Davis,  a 
Federal  revenue  officer,  killed  a  man,  was  arrested  therefor, 
and,  when  brought  to  trial,  applied  for  removal  to  a 
Federal  court  under  this  act.  The  State  of  Tennessee  de- 
nied the  constitutionality  of  this  grant  of  right  upon  the 
ground  that  the  act  for  which  Davis  was  being  tried  was 
a  violation  of  State  and  not  of  Federal  law.  This  the 
Federal  authorities  admitted,  but  asserted  that,  inasmuch 
as  the  defendant  was  a  Federal  official,  and  claimed  to 
have  committed  the  homicide  while  in  pursuance  of  his 
duties  as  such,  the  Federal  courts  had  the  right  to  assume 
jurisdiction  of  the  case  in  order  that  the  independence 
and  supremacy  of  Federal  authority  might  be  maintained. 

It  is  seen  that  §  33  gives  the  power  of  removal  only  with 
reference  to  suits  against  revenue  officers  of  the  Federal 
Government.  Section  31  however,  provides  that  "when 
any  civil  suit  or  criminal  prosecution  is  commenced  in  any 
State  court  for  any  cause  whatsoever  against  any  person 
who  is  denied  or  cannot  enforce  in  the  judicial  tribunals 


23  100  U.  S.  257;  25  L.  ed.  648. 


LAW  OF  THE  UNITED  STATES  419 

of  the  State  or  in  the  part  of  the  State  where  such  suit  or 
prosecution  is  pending  any  right  secured  by  him  by  any 
law  providing  for  the  equal  civil  rights  of  citizens  of  the 
United  States,  or  of  all  persons  within  the  jurisdiction  of 
the  United  States,  or  against  any  officer,  civil  or  military, 
or  other  person  for  any  arrest  or  imprisonment  or  other 
trespasses  or  wrongs  made  or  committed  by  virtue  of,  or 
under  color  of,  authority  derived  from  any  law  providing 
for  equal  rights,  as  aforesaid,  or  refusing  to  do  any  act  on 
the  ground  that  it  would  be  inconsistent  with  such  law, 
such  suit  or  prosecution  may,  upon  the  petition  of  such 
defendant  filed  in  said  State  court  at  any  time  before  the 
trial  or  final  hearing  of  the  cause,  stating  the  facts  and 
verified  by  oath,  be  removed  for  trial  into  the  next  District 
Court  to  be  held  in  the  district  where  it  is  pending."  The 
constitutionality  of  this  provision  has  been  affirmed.  As 
to  all  Federal  officials  other  than  revenue  officers,  Federal 
protection  against  State  action,  when  necessary,  must  be 
sought,  in  cases  not  covered  by  §  31,  either  by  way  of 
writ  of  error  from  the  highest  State  court  to  the  Supreme 
Court  of  the  United  States,  or,  if  that  be  inadequate,  by 
writ  of  habeas  corpus. 


CHAPTER  XLI 

THE  INDEPENDENCE   OF   THE   FEDERAL  JUDICIARY 

The  independence  of  the  Federal  judiciary 

During  the  ante  helium  period  the  Federal  Government 
often  made  use  of  State  tribunals  and  officers  for  the  exe- 
cution of  its  laws.  Thus  State  justices  of  the  peace  acted 
as  examining  magistrates  in  criminal  cases  for  the  Federal 
courts,  State  judges  officiated  in  the  execution  of  extradi- 
tion treaties  with  foreign  countries,  aliens  were  naturalized 
in  State  courts,  and  State  jails  and  penitentiaries  were 
used  for  the  incarceration  of  Federal  criminals.  Both  be- 
cause of  this  admixture  of  Federal  and  State  judicial 
agencies,  and  because  the  principle  of  the  absolute  inde- 
pendence of  the  Federal  Government  from  State  control 
was  not  clearly  recognized  and  admitted,  the  State  courts 
early  assumed  the  right,  by  the  issuance  of  writs  of  habeas 
corpus,  to  determine  whether  a  fugitive  from  the  justice  of 
a  foreign  country  and  fugitive  slaves  should  be  surrendered ; 
whether  persons  in  the  Federal  army  were  properly  held 
to  military  service;  and  even  whether  persons  in  the  mili- 
tary service  of  a  foreign  State  should  be  tried  for  acts  done 
as  belligerents  and  under  the  authority  of  their  sovereigns 
in  conformity  with  the  laws  of  nations.  It  was  not,  in- 
deed, until  1859  that  it  was  authoritatively  established 
by  the  Supreme  Court  that  the  State  courts  were  without 
the  constitutional  power  to  interfere  in  any  way  with  the 
processes  of  the  Federal  courts,  or,  in  truth,  with  any  of 
the  agencies  of  the  National  Government.  This  was  de- 
termined in  Ableman  v.  Booth.1  Here  a  State  court  had 

1  21  How.  506;  16  L.  ed.  169. 
420 


LAW  OF  THE  UNITED  STATES  421 

taken  possession  of  and  released  a  prisoner  in  Federal 
custody. 

The  Supreme  Court  declared  the  impropriety  of  these 
actions  in  the  following  language:  "We  do  not  question 
the  authority  of  State  court,  or  judge,  who  is  authorized 
by  the  laws  of  the  State  to  issue  the  writ  of  habeas  corpus, 
to  issue  it  in  any  case  where  the  party  is  imprisoned  within 
its  territorial  limits,  provided  it  does  not  appear,  when  the 
application  is  made,  that  the  person  imprisoned  is  in  cus- 
tody under  the  authority  of  the  United  States.  The  court 
or  judge  has  a  right  to  inquire,  in  this  mode  of  proceeding, 
for  what  cause  and  by  what  authority  the  prisoner  is  con- 
fined within  the  territorial  limits  of  the  State  sovereignty. 
But,  after  the  return  is  made,  and  the  State  judge  or  court 
is  judicially  appraised  that  the  party  is  in  custody  under 
the  authority  of  the  United  States,  they  can  proceed  no 
further." 

Notwithstanding  this  decision,  however,  a  number  of 
the  State  courts  still  claimed  and  exercised  the  right 
to  discharge  enlisted  soldiers  and  sailors  of  the  United 
States  from  the  custody  of  their  officers,  and  this  prac- 
tice was  not  stopped  until  1872  when,  in  Tarble's  case,2 
the  Federal  Supreme  Court  held  this  to  be  beyond  their 
power. 

Here  again,  as  in  the  case  of  Tennessee  v.  Davis,3  the 
point  at  issue  narrowed  itself  down  to  the  question  whether 
or  not  State  agencies  should  be  recognized  to  have  a  power 
which  might,  should  the  States  see  fit,  be  so  exercised  as 
seriously  to  embarrass  the  National  Government  in  the 
performance  of  its  constitutional  duties.  The  strict  ap- 
plication of  the  doctrine  of  a  divided  sovereignty  would 
have  led  in  both  cases  to  a  constitutional  impasse.  But 
in  these  as  in  other  cases  the  Federal  Supreme  Court  com- 

2 13  Wall.  397;  20  L.  ed.  597. 
3  100  U.  S.  257;  25  L.  ed.  648. 


422  PRINCIPLES  OF  THE  CONSTITUTIONAL 

pelled  the  States  in  the  exercise  of  their  powers  to  subordi- 
nate themselves  to  the  requirements  of  national  conven- 
ience and  necessity. 

This  case  settled  once  for  all  the  principle  that  it  is  a 
sufficient  return  to  a  writ  of  habeas  corpus  issued  by  a 
State  court  that  the  party  is  in  custody  under  claim  or 
color  of  Federal  authority  derived  from  either  a  statute 
or  judicial  process. 

Federal  writs  of  habeas  corpus 

Instead  of  submitting  to  interference  by  the  States  with 
the  exercise  of  their  powers,  the  Federal  courts  have, 
especially  of  recent  years,  again  and  again,  on  writs  of 
habeas  corpus,  removed  from  State  custody  persons 
charged  with  offenses  against  the  peace  of  the  States, 

The  Judiciary  Act  of  1789  gave  to  the  Federal  court 
authority  to  issue  the  writ  of  habeas  corpus  only  as  to 
persons  in  jail  under  or  by  color  of  authority  of  the  United 
States..  No  provision  was  thus  made  for  the  release  by 
Federal  courts  of  persons  in  custody  by  order  of  the  au- 
thorities of  a  State.. 

The  "Force"  Act  of  1833  gave  to  the  Federal  courts 
the  power  to  issue  writs  of  habeas  corpus  in  "all  cases  of  a 
prisoner  or  prisoners  in  jail  or  confinement,  where  he  or 
they  shall  be  committed  or  confined,  on  or  by  any  author- 
ity or  law  for  any  act  done,  or  omitted  to  be  done,  in 
pursuance  of  a  law  of  the  United  States,  or  any  order, 
process  or  decree  of  any  judge  or  court  thereof." 

In  1842  this  authority  of  the  Federal  courts  was  further 
broadened  by  the  provision  that  the  writ  might  issue  when 
a  subject  or  citizen  of  a  foreign  State,  domiciled  thereinr 
is  in  custody  because  of  an  act  done  or  omitted  under 
an  alleged  right,  title,  authority,  privilege,  protection,  or 
exemption  claimed  under  the  commission  or  order  or 
sanction  of  any  foreign  State,  or  under  color  thereof,  the 


LAW  OF  THE  UNITED  STATES  423 

validity  or  effect  of  which  is  dependent  upon  the  law  of 
nations. 

In  1867  the  jurisdiction  of  the  Federal  courts  was  still 
further  widened  by  the  provision  that  the  writ  might  issue 
"in  all  cases  where  any  person  may  be  restrained  of  his 
or  her  liberty  in  violation  of  the  Constitution  or  any  treaty 
or  law  of  the  United  States." 

Armed  with  the  authority  thus  given,  especially  by  the 
act  of  1867,  the  Federal  courts  have  repeatedly  taken  from 
the  custody  of  the  States  persons  charged  therein  with 
offenses  against  State  law.  Even  the  lowest  of  the  Federal 
courts  have  not  hesitated  to  exercise  the  power  as  to  per- 
sons held  for  trial  before  the  highest  courts  of  the  United 
States. 

The  leading  case,  however,  and  in  some  respects,  the 
most  extreme,  in  upholding  the  power  of  the  Federal 
courts  in  the  matter  of  the  issuance  of  writs  of  habeas 
corpus  to  State  authorities  is  that  of  Re  Neagle.4  In  that 
case  it  was  held  that  without  express  statutory  authoriza- 
tion, the  general  authority  of  the  President  to  see  that  the 
laws  of  the  Union  are  faithfully  executed  empowered  him 
to  appoint  a  deputy  marshal  to  protect  a  Federal  judge 
whose  life  was  threatened;  and  that  upon  such  deputy 
being  arrested  and  brought  to  trial  in  a  State  court  upon 
the  charge  of  murder  for  a  homicide  committed  while  act- 
ing within  the  line  of  the  duty  thus  assigned  him,  he  was 
entitled  to  release  on  habeas  corpus  issued  by  a  Federal 
judge.  In  this  case  the  objection  was  raised  that  inas- 
much as  there  was  no  Federal  statute  expressly  authorizing 
such  protection  as  Neagle  had  been  instructed  to  give, 
he  could  not  be  said,  in  the  language  of  the  act  of  1867,  to 
be  "in  custody  for  an  act  done  or  omitted  in  pursuance  of 
a  law  of  the  United  States."  To  this  Judge  Miller,  who 


135  U.  S.  1;  10  Sup.  Ct.  Rep.  658;  34  L.  ed.  55. 


424  PRINCIPLES  OF  THE  CONSTITUTIONAL 

rendered  the  majority  opinion  of  the  Supreme  Court, 
replied:  "In  the  view  we  take  of  the  Constitution  of  the 
United  States,  any  obligation  fairly  and  properly  inferable 
from  that  instrument,  or  any  duty  of  the  marshal  to  be 
derived  from  the  general  scope  of  his  duties  under  the  laws 
of  the  United  States,  is  a  'law'  within  the  meaning  of  this 
phrase." 

Writ  issued  only  when  imperative 

The  Supreme  Court  of  the  United  States,  though  uni- 
formly affirming  the  doctrine  that  the  Federal  courts  have 
power,  by  writ  of  habeas  corpus,  to  inquire  into  the  cause 
•of  the  restraint  of  the  liberty  of  any  person  by  a  State 
when  the  justification  of  Federal  authorization  or  im- 
munity is  set  up  for  the  act  complained  of,  has,  however, 
repeatedly,  and  of  recent  years  with  increasing  emphasis, 
laid  down  the  doctrine  that  the  Federal  courts  should 
not,  except  in  cases  of  peculiar  urgency,  exercise  that  power 
but  should  leave  such  persons  to  pursue  their  remedy  by 
writ  of  error  to  the  Federal  Supreme  Court,  after  the  ad- 
judication of  their  cases  in  the  States'  highest  courts.5 

The  act  of  1867  provides  that,  upon  the  return  of  the 
writ  of  habeas  corpus,  "the  court  of  justice,  or  judge,  shall 
proceed  in  a  summary  way  to  determine  the  facts  of 
the  case,  by  hearing  the  testimony  and  arguments,  and 
thereupon  to  dispose  of  the  party  as  law  and  justice  re- 
quire." 

It  would  not  appear  to  be  certainly  settled  just  what 
are  the  facts  to  be  determined  and  just  what  action  is  to 
be  taken  by  the  Federal  courts  in  cases  where  the  party 
suing  out  the  writ  claims  that  the  act  charged  against  him 
in  the  State  court  was  done  under  the  authority  of  the 
United  States  or  in  pursuance  of  a  process  of  its  courts. 
When,  by  means  of  the  writ,  the  Federal  court  has  brought 

5  Ex  parte  Royal,  117  U.  S.  241;  6  Sup.  Ct.  Rep.  734;  29  L.  ed.  868. 


LAW  OF  THE  UNITED  STATES  425 

the  accused  under  its  control,  is  it  its  duty  in  all  cases  to 
determine  whether  the  accused  was  an  officer  of  the  United 
States  and  further  whether  he  acted  in  good  faith,  and 
within  the  scope  of  his  Federal  authority,  and  is  there- 
fore entitled  to  discharge ;  and,  if  not,  to  impose  such  pen- 
alty as  the  law  and  facts  require?  Or,  where  the  question 
is  not  as  to  the  Federal  authority  which  is  set  up,  but  as 
to  whether  in  fact  that  authority  was  overstepped,  and 
there  is  conflicting  evidence  as  to  this,  is  it  the  duty  of  the 
Federal  court  to  remand  the  party  to  the  State  court  for 
the  determination  of  the  question? 

The  opinion  in  the  Ableman  and  Tarble  cases,  and  the 
reasoning  of  the  court  in  Tennessee  v.  Davis,  would  seem  to 
indicate  that  the  former  action  is  the  correct  one,  namely, 
that  the  Federal  court  should  not  remand  the  accused 
to  the  State  court,  but  itself  determine  the  fact  whether 
he  has  acted  in  excess  of  his  Federal  authority.  In  United 
States  ex  rel.  Drury  v.  Lewis,6  however,  the  court  accepted 
the  alternative  doctrine,  and  remanded  the  accused  for 
trial  to  the  State  court,  the  evidence  being  conflicting, 
as  to  whether  or  not  in  fact  he  had  exceeded  his  Federal  au- 
thority. 

That  a  State  court  has  no  power  to  issue  a  mandamus 
or  writ  of  certiorari  to  a  Federal  officer  is  not  questioned.7 

The  inability  of  the  State  courts  by  injunction  or  other- 
wise to  control  proceedings  in  Federal  courts  is  declared 
in  Weber  v.  Lee  Co.,8  United  States  v.  Keokuk,9  and  Super- 
visors v.  Durant.10  This  inability  arises  not  so  much  from 
the  supremacy  of  the  Federal  courts,  as  because  the  State 
and  Federal  judicial  systems  are  independent  of  one  an- 


6  200  U.  S.  1;  26  Sup.  Ct.  Rep.  229;  50  L.  ed.  343. 

7  M'Clung  v.  Silliman,  6  Wh.  598;  5  L.  ed.  340. 

8  6  Wall.  210;  18  L.  ed.  781. 

9  6  Wall.  514;  18  L.  ed.  933. 

10  9  Wall.  415;  19  L.  ed.  732. 


426  PRINCIPLES  OF  THE  CONSTITUTIONAL 

other.  In  Weber  v.  Lee  Co.100  the  court  say:  "State  courts 
cannot  enjoin  the  process  of  proceedings  in  the  circuit 
[Federal]  courts;  not  on  account  of  any  paramount  juris- 
diction in  the  latter,  but  because  they  are  entirely  inde- 
pendent in  their  sphere  of  action."  The  same  reason  is 
given  in  United  States  v.  Keokuk.106 

Injunctions  from  Federal  to  State  courts 

It  is,  however,  not  quite  correct  to  say  that  the  two 
judicial  .systems  are  "entirely  independent  in  their  sphere 
of  action."  It  is  true  that  the  State  courts  are  wholly 
without  power  in  any  way  to  control  the  operations  of  the 
Federal  courts,  but  the  reverse  is  not  true.  As  has  al- 
ready appeared,  a  writ  of  error  lies  in  certain  cases  from 
the  Federal  Supreme  Court  to  the  State  courts,  and, 
when  removal  of  a  case  is  sought,  the  Federal  courts  may 
issue  a  writ  of  certiorari  to  the  State  court  demanding  a 
copy  of  the  record,  and  the  clerk  of  the  State  court  refus- 
ing compliance  with  this  demand  becomes,  under  an  act 
of  Congress,  liable  to  fine  or  imprisonment.  Furthermore, 
the  Federal  courts  possess  the  right  to  protect  their  own 
jurisdictional  rights  or  the  rights  of  parties  to  suits  be- 
fore them  by  restraining  orders  forbidding  proceedings 
in  the  State  courts. 

It  is  true  that,  actuated  by  a  desire  to  preserve  as  far 
as  possible  the  independence  of  the  State  judiciaries  Con- 
gress, by  act  of  1793,  which  is  still  in  force,  has  provided 
that  "the  writ  of  injunction  shall  not  be  granted  by  any 
court  of  the  United  States  to  stay  proceedings  in  any  court 
of  a  State,  except  in  cases  where  such  an  injunction  may 
be  authorized  by  any  law  relating  to  proceedings  in  bank- 
ruptcy." But,  in  other  than  cases  in  bankruptcy,  the 
Federal  courts  have  not  hesitated  to  enjoin  proceedings 


w*  6  Wall.  210;  18  L.  ed.  781. 
">»6  Wall.  514;  18  L.  ed.  933. 


LAW  OF  THE  UNITED  STATES  427 

in  State  courts  where  this  has  been  necessary  to  preserve 
their  own  jurisdictional  rights,  or  to  protect  individuals 
in  their  Federal  rights.  Thus  in  Dietzsch  v.  Huidekoper  n 
it  was  held  that  the  prohibition  of  §  720  of  the  Revised 
Statutes  would  not  prevent  a  Federal  court  from  issuing 
an  injunction  restraining  proceedings  on  a  replevin  bond, 
the  State  suit  being  based  on  a  judgment  obtained  in  a 
State  court  after  the  defendant  had  removed  the  case  to 
the  Federal  courts  and  there  obtained  judgment  in  his 
favor. 

The  circumstances  under  which  the  Federal  courts 
will  issue  injunctions  restraining  State  officials  from  en- 
forcing, or  bringing  suits  in  the  State  courts  to  enforce 
a  State  act  which  is  alleged  to  be  in  contravention  of  the 
Federal  Constitution  will  be  further  considered  in  Chap- 
ter XLV,  in  which  the  suability  of  the  State  is  discussed. 

The  Federal  courts  have  not  been  given,  nor  could  they 
constitutionally  be  given,  the  jurisdiction  to  issue  writs 
of  mandamus  to  compel  the  performance  by  State  officials 
of  State  duties.  The  constitutional  power  of  Congress 
to  authorize  the  Federal  courts,  by  writ  of  mandamus, 
to  compel  the  performance  of  duties,  whether  by  State  or 
Federal  officials,  imposed  by  Federal  law  would  seem  to 
be  beyond  question,  though  Congress  has  not  yet  seen  fit 
to  grant  to  these  courts  the  power  except  as  ancillary  to 
jurisdiction  already  otherwise  granted.  It  is  to  be  re- 
membered, however,  that  Congress  cannot,  without  the 
consent  of  the  State,  impose  upon  its  functionaries  the 
performance  of  Federal  duties.  Where,  however,  the  act 
ordered  is  one  unconnected  with  his  official  state  duties, 
the  fact  that  an  individual  is  a  State  functionary  would 
not  exempt  him  from  the  mandatory  power  of  the  Fed- 
eral courts. 


11  103  U.  S.  4'94;  26  L.  ed.  497. 


428  PRINCIPLES  OF  THE  CONSTITUTIONAL 

State  restrictions  upon  the  right  of  removal  of  suits  from 
State  to  Federal  courts 

An  important  question  with  reference  to  the  mainte- 
nance of  Federal  authority,  is  as  to  the  authority  of  the 
States  to  prevent  foreign  corporations  from  removing 
into  the  Federal  courts  suits  brought  against  them  in  the 
State  courts  by  making  it  a  condition  precedent  to  their 
being  allowed  to  enter  the  State  or  to  continue  to  do 
business  therein  that  they  will  not  exercise  this  Federal 
right.  Here  it  is  apparent  that  the  question  is  not  so 
much  the  right  of  the  State  to  interfere  with  the  exercise 
by  a  Federal  court  of  its  jurisdiction  when  obtained,  as  it 
is  to  prevent  that  jurisdiction  from  being  invoked. 

That  the  States  cannot  put  restrictions  upon  the  re- 
moval of  cases  from  their  courts  to  Federal  tribunals  any 
more  than  they  can  prevent  it  was  declared  in  a  case  aris- 
ing under  the  statute  of  the  State  of  Wisconsin  which  pro- 
vided that  insurance  companies  of  other  States  desiring 
to  do  business  within  its  limits  should  sign  a  written  agree- 
ment that  they  would  not  remove  into  the  Federal  courts 
suits  brought  against  them  in  the  State's  courts.  One  of 
these  companies,  having  removed  a  case  into  the  Federal 
courts  notwithstanding  its  agreement  not  to  do  so,  the 
Wisconsin  courts,  ignoring  the  fact  of  its  removal,  pro- 
ceeded with  the  case  and  rendered  judgment  against  the 
company.  The  Supreme  Court  of  the  United  States, 
upon  appeal  to  it,  declared  the  judgment  void  upon  the 
ground  that  the  agreement  itself  and  the  statute  requiring 
it  were  illegal,  as  no  one  could  be  compelled  to  bind  him- 
self in  advance  not  to  exercise  a  right  guaranteed  to  him 
by  the  Constitution  any  more  than  he  could  barter  away 
his  life  or  freedom.12 

When,  however,  in  a  later  case,  the  Supreme  Court  of 
the  United  States  was  asked  to  issue  an  injunction  for- 

12  Home  Insurance  Co.  v.  Morse,  20  Wall.  445;  22  L.  ed.  365. 


LAW  OF  THE  UNITED  STATES  429 

bidding  the  Secretary  of  State  of  Wisconsin  to  revoke  the 
license  of  an  insurance  company  that  had  violated  its  agree- 
ment not  to  remove,  that  court  held  that  it  could  not  thus 
control  the  action  of  a  State  official,  even  though  his  action 
was  apparently  based  upon  an  improper  ground.  The 
court  said:  "The  argument  that  the  revocation  in  question 
is  made  for  an  unconstitutional  reason  cannot  be  sustained. 
The  suggestion  confounds  an  act  with  an  emotion  or  a 
mental  proceeding  which  is  not  the  subject  of  inquiry 
in  determining  the  validity  of  a  statute."13  In  other  words 
it  was  held  that  the  right  both  of  granting  and  of  revoking 
a  license  to  a  foreign  corporation  to  do  business  within  a 
State  belonging  to  the  proper  officer  of  that  State,  it  was 
not  within  the  competence  of  a  Federal  court  to  determine 
whether  that  power  was  exercised  for  a  good  or  bad  reason 
or  for  no  reason  at  all. 

But  when,  in  a  still  later  case,  there  was  drawn  into  ques- 
tion the  operation  of  a  statute  of  Iowa  which  declared  that 
upon  the  violation  by  a  foreign  insurance  company  of  its 
agreement  not  to  remove  a  case  to  the  Federal  courts, 
its  license  should  thereby  become  void,  the  Federal  Su- 
preme Court  held  that  the  violation  of  an  illegal  agreement 
could  not  of  itself  operate  as  a  revocation  of  the  company's 
license.  If  revoked  at  all  it  would  have  to  be  by  the  act 
of  a  competent  State  official,  and  not,  ipso  facto,  by  the 
exercise  of  a  constitutional  right.14 

This  entire  subject  was  reviewed  in  Security  Mutual 
Life  Insurance  Co.  v.  Prewitt15  in  which  it  was  held  that  a 
State  may  by  statute  provide  that  if  a  foreign  insurance 
company  shall  remove  to  a  Federal  court  a  case  which 
has  been  commenced  in  a  State  court,  the  license  of  such 


13  Doyle  v.  Continental  Insurance  Co.,  94  U.  S.  535;  24  L.  ed.  148. 

14  Barren  v.  Burnside,  121  U.  S.  186;  7  Sup.  C.t.  Rep.  931;  30  L.  ed. 
915. 

»5  202  U.  S.  246;  26  Sup.  Ct.  Rep.  619;  50  L.  ed.  10J3. 


430  PRINCIPLES  OF  THE  CONSTITUTIONAL 

company  to  do  business  within  the  State  shall  thereupon 
be  revoked.  In  its  opinion  the  court  say:  "It  is  admitted 
that  a  State  has  power  to  prevent  a  company  from  com- 
ing into  its  domain,  and  that  it  has  the  power  to  take  away 
the  right  to  remain  after  having  been  permitted  once  to 
enter,  and  that  right  may  be  exercised  from  good  or  bad 
motives;  but  what  the  company  denied  [in  this  case]  is  the 
right  of  a  State  to  enact  in  advance  that  if  a  company  re- 
move a  case  to  a  Federal  court,  its  license  shall  be  revoked. 
We  think  this  distinction  is  not  well  founded.  The  truth 
is  that  the  effect  of  the  statute  is  simply  to  place  foreign 
companies  upon  a  par  with  the  domestic  ones  doing  bus- 
iness in  Kentucky.  No  stipulation  or  agreement  being 
required  as  a  condition  for  coming  into  the  State  and  ob- 
taining a  permit  to  do  business  therein,  the  mere  enactment 
of  a  statute  which,  in  substance,  says  if  you  choose  to 
exercise  your  right  to  remove  a  case  into  a  Federal  court, 
your  right  to  further  do  business  within  the  State  shall 
cease  and  your  permit  shall  be  withdrawn,  is  not  open  to 
any  constitutional  objection.  The  reasoning  in  the  Doyle 
case  we  think  is  good." 

From  the  foregoing  cases  it  is  apparent  that  no  abandon- 
ment is  really  made  of  the  principle  that  the  States  are 
constitutionally  incompetent  to  interfere  with  or  prohibit 
the  exercise  of  a  Federal  right.  Corporations  chartered 
in  one  State  and  doing  business  in  another  State  may  ex- 
ercise the  right  of  removal  given  them  by  the  ^  Federal 
statutes  without  reference  to  what  the  laws  of  the  States 
in  which  they  are  doing  business  may  provide,  and  this 
they  may  do  even  if  they  have  contracted  with  those 
State  authorities  not  to  exercise  this  right.  The  fact  that 
the  State  authorities,  in  the  exercise  of  a  power  acknowl- 
edged to  be  possessed  by  them,  withdraw,  or  threaten  to 
withdraw,  a.  privilege  which  they  have  granted,  furnishes 
no  ground  for  Federal  relief.  There  is,  to  be  sure  a  causal 


LAW  OF  THE  UNITED  STATES  431 

nexus  between  the  exercise  of  the  Federal  right  of  removal 
and  of  the  State's  right  to  withdraw  its  permission  to 
the  foreign  corporation  to  do  business  within  the  State's 
limits.  But,  legally  speaking,  there  is  no  connection. 
Each  is  the  exercise  of  an  independent  right.  The  case 
is  not  similar  to  one  where  the  State  interferes  with  or 
hinders  the  operation  of  a  Federal  agency,  as,  for  example, 
by  taxation  of  its  franchise.  In  the  cases  above  considered 
no  attempt  is  made  by  the  States  to  declare  what  cases 
shall  and  what  cases  shall  not  be  removed  into  the  Federal 
courts,  or  in  any  way  to  interfere  with  the  exercise  of  their 
jurisdiction  by  those  courts  after  the  cases  have  been 
removed  into  them.  Whenever  this  has  been  attempted 
the  Federal  courts  have  prevented  it.  Thus  it  has  been 
repeatedly  declared  that  the  jurisdiction  conferred  on  the 
Federal  courts  cannot  in  any  way  be  abridged  or  impaired 
by  the  statutes  of  a  State.16 

So,  also,  it  is  held  that  the  proper  petition  and  bond  hav- 
ing been  filed,  the  case  is  considered  removed  even  though 
the  State  court  may  refuse  to  make  an  order  of  removal, 
and  may  in  fact  proceed  with  the  trial  of  the  cause.17  In 
such  cases,  the  defendant  may,  if  he  chooses,  defend  the 
case  in  the  State  court,  and  after  final  judgment  obtain  a 
writ  of  error  from  the  United  States  Supreme  Court,  and 
in  so  doing  he  does  not  forfeit  his  right  to  defend  in  the 
lower  Federal  court.  The  Circuit  Court  can  issue  a  writ  of 
certiorari  to  the  State  court  demanding  a  copy  of  the 
record  in  the  case  and  the  clerk  refusing  to  furnish  it  be- 
comes liable  under  a  Federal  act  to  fine  or  imprisonment.18 

In  the  recently  decided  case  of  W.  U.  Telegraph  Co.  v. 


16  Hyde  v.  Stone,  20  How.  170,  15  L.  ed.  874;  Smyth  v.  Ames,  169 
U.  S.  466;  18  Sup.  Ct.  Rep.  418;  42  L.  ed.  819. 

17  Marshall  v.  Holmes,  141  U.  S.  589;  12  Sup.  Ct.  Rep.  62;  35  L.  ed. 
870. 

18  Act  of  March  3,  1875. 


432  PRINCIPLES  OF  THE  CONSTITUTIONAL 

Kansas19  the  court  takes  a  position  which  is  somewhat 
difficult  to  harmonize  with  that  assumed  in  the  insurance 
cases.  In  this  case  the  court  held  unconstitutional  as  an 
interference  with  interstate  commerce  a  State  law  exact- 
ing from  a  foreign  telegraph  corporation,  as  a  condition 
to  being  permitted  to  continue  to  do  a  local  business  within 
the  State,  a  charter  fee  of  a  given  per  cent  of  its  entire 
authorized  stock.  The  court  declare:  "The  vital  differ- 
ence between  the  Prewitt  case  and  the  one  now  before 
us  is  that  the  business  of  the  insurance  company,  involved 
in  the  former  case,  was  not,  as  this  court  has  often  ad- 
judged, interstate  commerce,  while  the  business  of  tele- 
graphing was  primarily  and  mainly  that  of  interstate 
commerce."  This  is  true  enough,  but  the  essential  fact 
still  remains  that  the  Prewitt  case  permitted  the  State 
to  exact  of  the  foreign  corporation  as  a  condition  to  its 
being  permitted  to  do  business  within  the  State  that  it 
should  forego  the  exercise  of  a  Federal  constitutional  right, 
whereas,  in  the  later  case  it  was  held  that  the  State  might 
not  as  a  similar  condition  impose  burdens  upon  the  exercise 
by  the  foreign  corporation  of  the  Federal  right  of  carrying 
on  interstate  commerce,  which  latter  right  can  scarcely 
be  said  to  be  a  more  important  one  than  that  involved 
in  the  Prewitt  case.  It  would  seem,  therefore,  that  the 
decision  might  better  have  been  based  upon  the  ground 
suggested  by  Justice  White  in  his  concurring  opinion  in 
the  later  case  that  the  company  having  been  permitted 
to  enter  the  State  and  construct  its  plant  there,  the  oner- 
ous conditions  attempted  to  be  imposed  by  the  State  as  a 
condition  to  its  remaining  there  were  confiscatory  and, 
therefore,  wanting  in  due  process  of  law. 

Congress  may  not  confer  jurisdiction  upon  State  courts 
As  has  been  earlier  pointed  out  the  State  courts  pos- 

19  216  U.  S.  1;  30  Sup.  Ct.  Rep.  190;  54  L.  ed.  355.    See  also  Lud- 
wig  v.  W.  U.  Tel.  Co.,  Feb.  21,  1910. 


LAW  OF  THE  UNITED  STATES  433 

sess  jurisdiction  over  certain  cases  concurrently  with  that 
possessed  by  the  Federal  courts.  This,  however,  is  not 
a  jurisdiction  which  is  conferred  upon  them  by  Federal 
statute,  but  one  which  they  possess  under  State  law  and 
which  they  are  permitted  to  retain  even  after  the  same 
jurisdiction  is  by  act  of  Congress  conferred  upon  the  in- 
ferior Federal  tribunals.  Congress,  indeed,  is  without 
power  to  confer  jurisdiction  upon  any  courts  not  created 
by  itself.20 

Congress  may,  however,  delegate  to  State  courts  the  per- 
formance of  certain  routine  functions  which  do  not  involve 
the  trial  of  "cases."  21  Thus,  for  example,  any  State  chan- 
cellor, judge,  or  justice  of  the  peace  may  cause  to  be  ar- 
rested and  committed  or  held  to  trial  any  person  charged 
with  an  offense  against  the  United  States. 

20  Houston  v.  Moore,  5  Wh.  1;  5  L.  ed.  19. 

21  Robertson  v.  Baldwin,  165  U.  S.  275;  17  Sup.  Ct.  Rep.  326;  41 
L.  ed.  715. 


28 


CHAPTER  XLII 

POLITICAL   QUESTIONS 

Political  questions 

Elsewhere  in  this  treatise  the  well-known  and  well- 
established  principle  is  considered  that  it  is  not  within  the 
province  of  the  courts  to  pass  judgment  upon  the  policy 
of  legislative  or  executive  action.  Where,  therefore,  dis- 
cretionary powers  are  granted  by  the  Constitution  or  by 
statute,  the  manner  in  which  those  powers  are  exercised 
is  not  subject  to  judicial  review.  The  courts,  therefore, 
concern  themselves  only  with  the  question  as  to  the  exist- 
ence and  extent  of  these  discretionary  powers. 

As  distinguished  from  the  judicial,  the  legislative  and 
executive  departments  are  spoken  of  as  the  political  de- 
partments of  government  because  in  very  many  cases 
their  action  is  necessarily  dictated  by  considerations  of 
public  or  political  policy.  These  considerations  of  public 
or  political  policy  of  course  will  not  permit  the  legislature 
to  violate  constitutional  provisions,  or  the  executive  to 
exercise  authority  not  granted  him  by  the  Constitution 
or  by  statute,  but  within  these  limits  they  do  permit  the 
departments,  separately  or  together,  to  recognize  that  a 
certain  set  of  facts,  that  a  given  status,  exists,  and  these 
determinations,  together  with  the  consequences  that  flow 
therefrom,  may  not  be  traversed  in  the  courts. 

In  the  exercise  of  his  political  powers,  not  only  the 
President,  but  those  acting  under  his  order  are  exempt 
from  judicial  control.1 

1  Marbury  v.  Madison,  1  Cr.  137;  2  L.  ed.  60. 
434 


LAW  OF  THE  UNITED  STATES  435 

No  comprehensive  enumeration  of  these  political  de- 
terminations has  been  attempted  by  the  courts,  nor, 
indeed,  is  such  an  enumeration  possible.  Specifically, 
however,  the  following  have  been  decided,  as  the  cases 
have  arisen,  to  be  political  and,  therefore,  not  justici- 
able. 

In  Georgia  v.  Stanton  2  the  court  denied  that  it  had 
jurisdiction,  because  the  matter  was  a  political  one,  to 
restrain  the  Secretary  of  War  and  the  military  authorities 
from  putting  into  force  certain  acts  of  Congress  providing 
for  a  military  "  reconstruction "  government  in  the  State 
of  Georgia. 

In  Foster  v.  Neilson,3  the  existence  and  territorial  extent 
of  the  sovereignty  of  the  United  States  or  of  foreign  states, 
and,  of  course,  as  involved  herein,  the  de  jure  character 
of  their  governments,  were  held  to  be  political  ques- 
tions. 

In  Ex  parte  Cooper,4  the  court  expressed  itself  bound 
by  the  action  of  the  political  departments  claiming  that 
the  jurisdiction  of  the  United  States  extended  more  than 
fifty-nine  miles  from  the  shores  of  Alaska. 

In  United  States  v.  Palmer,5  questions  as  to  the  existence 
of  war,  belligerency,  and  neutrality,  were  similarly  held  to 
be  political  in  character,  and  not  subject  to  judicial  deter- 
mination. 

Whether  or  not  a  treaty  or  other  international  agreement 
is  in  force  is  exclusively  within  the  determination  of  the 


2  6  Wall.  50;  18  L.  ed.  721. 

3  2  Pet.  253;  7  L.  ed.  415. 

4 143  U.  S.  472;  12  Sup.  Ct.  Rep.  453;  36  L.  ed.  232.  See,  also, 
Williams  v.  Suffolk  Ins.  Co.,  13  Pet.  415;  10  L.  ed.  226,  and  Jones  v. 
United  States,  137  U.  S.  202;  11  Sup.  Ct.  Rep.  80;  34  L.  ed.  691. 

5  3  Wh.  610;  4  L.  ed.  471.  See,  also,  The  Divina  Pastora,  4  Wh. 
52;  4  L.  ed.  512;  The  Santissima  Trinidad,  7  Wh.  283;  5  L.  ed.  454, 
and  Kennett  v.  Chambers,  14  How.  38;  14  L.  ed.  316. 


436  PRINCIPLES  OF  THE  CONSTITUTIONAL 

political  departments.6  So  also  is  the  status  of  accredited 
agents  of  foreign  countries.7 

In  Boynton  v.  Elaine8  it  was  held  that  a  mandamus 
would  not  lie  to  control  the  executive  department  with 
reference  to  claims  prosecuted  by  it  against  foreign  States 
in  behalf  of  private  persons. 

In  Luther  v.  Borden 9  the  judiciary  was  declared  to  be 
without  authority  to  reverse  the  decision  of  the  political 
departments  of  the  national  government  as  to  the  de  jure 
character  of  two  contesting  governments  of  a  State  of 
the  Union. 

In  Martin  v.  Mott,10  it  was  held  that  the  courts  could 
not  question  the  propriety  of  the  action  of  the  President, 
acting  under  the  law  of  1795,  in  calling  out  the  militia  to 
suppress  an  insurrection  or  to  repel  an  invasion. 

In  Neely  v.  Henkel  n  it  was  held  to  be  exclusively  the 
function  of  the  political  branch  of  the  government  to 
determine  how  long  the  military  occupation  and  control 
of  Cuba  should  continue. 

In  United  States  v.  Holliday,12  the  question  as  to  the 
existence  of  tribal  relations  among  Indians  was  declared 
to  be  a  political  one. 

Though  questions  of  the  extent  of  political  jurisdiction 
are,  as  has  been  seen,  essentially  political  in  character, 
they  are  as  between  the  individual  States  of  the  Union 
justiciable  in  the  Supreme  Court.  This,  however,  is  due 
to  the  express  provision  of  the  Constitution  giving  to  that 
court  original  jurisdiction  over  "controversies  between 

6  Doe  v.  Braden,  16  How.  635;  14  L.  ed.  1090;  Terlinden  v.  Ames, 
184  U.  S.  270;  22  Sup.  Ct.  Rep.  484;  46  L.  ed.  534. 

7  Ex  parte  Baiz,  135  U.  S.  403;  10  Sup.  Ct.  Rep.  854;  34  L.  ed.  222. 
8 139  U.  S.  306;  11  Sup.  Ct.  Rep.  607;  35  L.  ed.  183. 

9  7  How.  1;  12  L.  ed.  581. 

10 12  Wh.  19;  6  L.  ed.  537. 

11 180  U.  S.  109;  21  Sup.  Ct.  Rep.  302;  45  L.  ed.  448. 

12  3  Wall.  407;  18  L.  ed.  182. 


LAW  OF  THE  UNITED  STATES  437 

two  or  more  States."  This  precise  question  is  more  par- 
ticularly discussed  in  a  later  chapter  dealing  with  suits 
between  States. 

Courts  will  exercise  jurisdiction  when  private  rights  are  in- 
volved . 

In  all  of  the  foregoing  cases  the  courts  have  held  them- 
selves bound  by  the  positions  assumed  by  the  executive 
and  legislative  departments.  When,  however,  private 
justiciable  rights  have  been  involved  in  a  suit,  the  court 
has  indicated  that  it  will  not  refuse  to  assume  jurisdiction 
even  though  questions  of  extreme  political  importance  are 
also  necessarily  involved. 

Thus,  as  has  been  set  forth  in  another  chapter,  treaties 
entered  into  by  the  United  States  not  only  bind  the  United 
States  internationally,  but  create  municipal  law  for  in- 
dividuals so  far  as  their  personal  rights  and  property  are 
concerned.  Thus  a  treaty  having  been  entered  into  the 
courts  will  follow  its  terms  even  when,  by  doing  so,  it  has 
to  go  counter  to  the  position  previously  assumed  by  the 
executive  department,  or,  indeed,  contended  for  by  the 
government  in  the  case  at  bar.13 

Courts  will  not  perform  administrative  functions 

From  the  foregoing  it  appears  that  the  courts  them- 
selves decline  to  assume  jurisdiction  with  reference  to 
matters  of  a  political  character.  So  also,  they  have  held 
that  it  is  beyond  the  constitutional  power  of  Congress 
to  impose  upon  them  the  performance  of  duties  essentially 
administrative  in  nature.  The  instances  in  which  the 
lower  Federal  courts  have  refused  to  perform  administra- 
tive functions  are  considered  in  a  later  chapter.  So  also, 
it  has  been  held  that  these  courts  sitting  as  equity  tribunals 


13  Ex  parte  Cooper,  143  U.  S.  472;  12  Sup.  Ct.  Rep.  453;  36  L.  ed. 
232;  The  La  Ninfa,  75  Fed.  Rep.  513. 


438  PRINCIPLES  OF  CONSTITUTIONAL  LAW 

may  exercise  only  those  powers  of  English  courts  of  chan- 
cery which  were  judicial  in  character,  and  not  those  exer- 
cised by  the  chancellor  as  the  representative  of  the  King 
and  by  virtue  of  the  King's  prerogative  as  par  ens  patriae.14 

14  Fontain  v.  Ravenel,  17  How.  369;  15  L.  ed.  80. 


CHAPTER  XLIII 

THE  LAW  ADMINISTERED  BY  FEDERAL  COURTS 

Federal  courts  and  international  law 

Thus  far  in  our  consideration  of  the  Federal  courts  we 
have  been  concerned  with  their  organization  and  fields 
of  jurisdiction.  We  turn  now  to  the  inquiry  as  to  the  law 
which  they  administer. 

When  exercising  jurisdiction  determined  by  the  nature 
of  the  subjects  litigated,  which  subjects  have  been  placed 
by  the  Constitution  within  the  legislative  control  of 
Congress,  the  Federal  courts  of  course  administer  the 
Federal  statutes  and  the  Constitution  so  far  as  it  is  self- 
executory.  In  one  class  of  cases,  maritime  and  admiralty 
matters,  the  grant  by  the  Constitution  of  judicial  power 
has  been  construed  to  carry  with  it  a  grant  of  legislative 
power  to  provide  the  law  to  be  applied.  Where  the  Federal 
courts  obtain  jurisdiction  wholly  because  of  the/  character 
of  the  parties,  the  Federal  courts,  generally  speaking,  ap- 
ply the  State  or  other  law  which  would  apply  were  the 
suits  brought  in  the  State  courts.  The  exceptions  to  this 
rule  have  in  a  measure  been  already  considered  in  connec- 
tion with  the  impairment  of  the  obligation  of  contracts, 
and  will  be  further  considered  in  the  next  following  sec- 
tion. In  the  present  section  will  be  considered  the  force 
and  applicability  of  principles  of  international  law  in 
the  Federal  courts. 

In  so  far  as  applicable,  American  courts  apply  estab- 
lished doctrines  of  international  law.  Not,  however,  in 
the  sense  that  they  apply  a  body  of  law  which  has  not 

439 


440  PRINCIPLES  OF  THE*  CONSTITUTIONAL 

been  derived  from  and  based  upon  the  sovereign  will  of 
the  American  State,  but  upon  the  theory  that  this  body 
of  rules  is  first  impliedly  adopted  by  the  State  and  thus 
made  a  portion  of  its  own  municipal  law.  Resting  thus 
upon  the  implied  assent  and  adoption  of  the  United  States, 
these  principles  of  international  law  are  subject  to  express 
modifications  by  statute.  In  the  very  early  case  of  The 
Charming  Betsy,1  decided  in  1804,  it  seems  to  have  been 
accepted  as  a  principle  not  needing  argument  that  the 
court  would  be  bound  by  an  act  of  Congress  providing  a 
rule  different  from  that  laid  down  by  international  law, 
the  only  observation  made  being  that  "an  act  of  Congress 
ought  never  to  be  construed  to  violate  the  law  of  nations 
if  any  other  possible  construction  remains." 

Where  principles  of  international  law  are  applicable 
they  do  not  need  to  be  proved  as  in  the  case  of  foreign 
municipal  laws,  but  may  be  taken  judicial  cognizance  of 
by  the  courts.  That  is,  they  may,  if  not  already  known 
to  the  court,  be  ascertained  by  the  court  by  its  own  study 
of  the  proper  sources  of  information. 

Federal  criminal  law 

There  is  no  common,  non-statutory,  Federal  criminal 
law.  The  Federal  courts  have  no  criminal  jurisdiction 
save  that  given  them  by  statute  of  Congress ;  and  no  act  is 
recognized  as  a  crime  against  the  peace  of  the  United 
States  except  as  it  has  been  declared  such  by  act  of  Con- 
gress; and  Congress  has  of  course  no  constitutional  power 
to  create  crimes  and  affix  penalties  to  the  commission 
thereof  except  as  to  subjects  or  in  places  which  the  Con- 
stitution places  under  Federal  control.  Thus,  as  a  means 

1  2  Cr.  64;  2  L.  ed.  208.  See,  also,  The  Nereide,  9  Cr.  388;  3  L.  ed. 
769;  Hylton  v.  Guyot,  159  U.  S.  113;  16  Sup.  Ct.  Rep.  139;  40  L.  ed. 
95;  The  Lottawanna,  21  Wall.  558;  22  L.  ed.  654;  and  especially, 
The  Paquete  Habana,  175  U.  S.  677;  20  Sup.  Ct.  Rep.  290;  44  L.  ed. 
320. 


LAW  OF  THE  UNITED  STATES  441 

of  compelling  obedience  to  the  laws  which  Congress  is 
constitutionally  empowered  to  enact,  it  may  attach  crim- 
inal penalties  to  their  violation. 

But  though  the  Federal  courts  have  no  common-law 
Federal  jurisdiction,  and  though  there  is  no  common,  non- 
statutory  law  for  them  to  administer,  they  may,  and  in- 
deed have  been  authorized  by  statute  to  adopt  common- 
law  remedies  and  punishments  where  Congress  has  not 
otherwise  provided.  Thus  §  722  of  the  Revised  Statutes 
reads : 

"The  jurisdiction  in  civil  and  criminal  matters  con- 
ferred on  the  District  and  Circuit  courts  by  the  provisions 
of  this  Title  and  of  Title  ' Civil  Rights'  and  of  the  Title 
'Crimes,'  for  the  protection  of  all  persons  in  the  United 
States  in  their  civil  rights  and  for  their  vindication,  shall 
be  exercised  and  enforced  in  conformity  with  the  laws  of 
the  United  States,  so  far  as  such  laws  are  suitable  to  carry 
the  same  into  effect;  but  in  all  cases  where  they  are  not 
adapted  to  the  object,  or  are  deficient  in  the  provisions 
necessary  to  furnish  suitable  remedies  and  punish  offenses 
against  law,  the  common  law,  as  modified  and  changed 
by  the  Constitution  and  statutes  of  the  State  wherein  the 
court  having  jurisdiction  of  such  civil  or  criminal  cause 
is  held,  so  far  as  the  same  is  not  inconsistent  with  the 
Constitution  and  law  of  the  United  States,  shall  be  ex- 
tended to  govern  the  said  courts  in  the  trial  and  disposi- 
tion of  the  cause,  and,  if  it  is  of  a  criminal  nature,  in  the 
infliction  of  punishment  on  the  party  found  guilty." 

Federal  courts  and  the  construction  of  State  laws 

By  the  Constitution  the  Federal  courts  are  given  juris- 
diction of  all  suits  between  two  or  more  States,  between  a 
State  and  citizens  of  another  State,  between  citizens  of 


2  As  to  the  modes  of  procedure,  see  Tennessee  v.  Davis,  100  U.  S. 
257;  25  L.  ed.  648. 


442  PRINCIPLES  OF  THE  CONSTITUTIONAL 

different  States,  between  citizens  of  the  same  State  claim- 
ing lands  under  grants  of  different  States,  and  between  a 
State,  or  the  citizens  thereof,  and  foreign  States,  citizens 
or  subjects. 

In  this  grant  of  jurisdiction  the  determining  factor  is 
not  the  nature  of  the  matter  litigated  or  the  law  involved, 
but  the  character  of  the  parties  to  the  suits.  No  question 
of  Federal  concern,  and  no  construction  of  a  Federal  law 
or  constitutional  provision  need  be  involved.  The  sub- 
jects to  be  determined  may,  and,  indeed  usually  in  this 
class  of  cases,  depend  wholly  upon  the  interpretation  and 
application  of  the  laws  of  one  or  more  of  the  States.  The 
object  in  giving  this  jurisdiction  to  the  Federal  courts  is 
thus  not  the  protection  of  Federal  rights,  privileges,  and 
immunities,  but  the  provision  of  tribunals  presumably 
more  impartial  than  would  be  State  tribunals  when  called 
upon  to  adjudicate  between  citizens  of  the  State  in  which 
they  are  sitting  and  citizens  of  other  States.3 

In  short,  the  theory  is  that  the  Federal  courts  when  thus 
called  upon  by  reason  of  the  diversity  of  citizenship  of 
the  parties  to  construe  and  apply  State  law,  are  to  con- 
sider themselves  as  ad  hoc  agents  of  the  State,  and,  there- 
fore, under  an  obligation  to  apply  that  law  as  they  find 
it.  This  obligation  was  recognized  in  §  34  of  the  original 
Judiciary  Act  of  1789,  now  §  721  of  the  Revised  Statutes, 
which  provides  that:  "The  laws  of  the  several  States, 
except  where  the  Constitution,  treaties  or  statutes  of  the 
United  States  shall  otherwise  require  or  provide,  shall  be 
regarded  as  rules  of  decision  in  trials  at  common  law,  in 
the  courts  of  the  United  States,  in  cases  where  they  ap- 
ply." This  provision  has  remained  unaltered  to  the 
present  day,  and  constitutes  §  721  of  the  Revised  Statutes. 
What  the  proper  construction  of  the  State  law  is,  which 
they  are  to  apply,  the  Supreme  Court  of  the  United  States 

3  Cf.  The  Federalist,  No.  LXXX. 


LAW  OF  THE  UNITED  STATES  443 

has  repeatedly  declared  is  (subject  to  the  exceptions  herein- 
after to  be  described)  to  be  determined  by  the  interpreta- 
tion that  has  been  given  to  it  by  the  State  that  has  en- 
acted it.4 

The  rule  itself  is,  it  is  to  be  observed,  rather  one  of 
comity  and  of  statutory  creation,  than  of  constitutional 
necessity.  Furthermore  even  this  statutory  provision  is 
limited  to  actions  at  law.  The  entire  field  of  equity  pro- 
cedure is  thus  omitted  from  its  control.5 

It  does  not  clearly  appear  just  how  far  the  Federal 
courts,  when  exercising  their  equity  jurisdiction,  are  dis- 
posed to  go  in  refusing  to  follow  the  substantive  rules  and 
law  of  the  States.  It  is,  however,  quite  clear  that  they 
take  a  proper  stand  when  they  assert  that  their  equity 
jurisdiction  may  not  in  any  way  be  burdened  by  State 
law  either  by  way  of  definition  of  what  shall  constitute 
equitable  causes  of  action,  or  what  procedure  shall  be 
followed  or  remedies  applied.  But  in  not  a  few  cases  the 
language,  though  for  the  most  part  obiter,  is  much  broader 
than  this,  and  indicates  an  apparent  willingness  to  go 
beyond  this  and  refuse  to  follow  State  law,  even  in  statute 
form,  with  reference  to  substantive  matters  of  law  as  dis- 
tinguished from  rules  of  procedure  and  remedies. 

Rules  of  evidence  and  procedure 

Generally  speaking,  Congress  may  of  course  provide 
the  rules  of  evidence  to  be  adopted  by  the  Federal  courts 
and  itself  establish,  or  empower  the  courts  themselves  to 
establish,  the  rules  governing  their  procedure  in  the  trial 
of  cases,  the  preparing  and  printing  of  records,  the  perfect- 
ing of  appeals,  etc.6 

4Elmendorf  v.  Taylor,  10  Wh.  152;  6  L.  ed.  289;  Shelby  Co.  v. 
Guy,  11  Wh.  361;  6  L.  ed.  495;  Folk's  Lessee  v.  Wendell,  5  Wh.  293; 
5  L.  ed.  92. 

5  Boyle  v.  Zacharie,  6  Pet.  635;  8  L.  ed.  527. 

6  Potter  v.  National  Bank,  102  U.  S.  163;  26  L.  ed.  111. 


444  PRINCIPLES  OF  THE  CONSTITUTIONAL 

Section  914  of  the  Revised  Statutes  provides  that  in 
the  Federal  courts  in  civil  causes  other  than  equity  and 
admiralty,  "the  practice,  pleadings  and  forms  and  modes 
of  proceeding"  shall  conform  "as  near  as  may  be"  to 
the  existing  practice  in  the  States  in  which  they  sit.  There 
is  thus  left,  even  as  to  these  causes,  opportunity  for  vari- 
ance of  practice  whether  because  of  constitutional  neces- 
sity, as  for  example,  with  reference  to  jury  trial,  or  be- 
cause of  statutory  direction.  Thus  the  rules  with  reference 
to  the  compulsory  production  of  documentary  evidence, 
the  amendment  of  pleadings,  etc.,  are  fixed  by  Federal 
statute.  So  also,  it  is  held  that  Federal  judges  are  not 
bound  by  State  rules,  with  reference  to  instructing  the 
jury,  the  granting  of  new  trials,  the  submission  of  special 
issues  to  the  jury,  the  preparation  of  a  case  for  appeal, 
etc.7 

Unsettled  construction  of  State  law 

In  Green  v.  Neal 8  it  was  held  that  where  a  State  court 
had  changed  its  former  construction  of  a  law,  the  Federal 
courts,  upon  a  subsequent  case  coming  before  them,  should 
do  likewise  and  thus  keep  ever  in  accord  with  the  latest 
decisions  of  the  State  courts. 

It  would  appear,  however,  that  though  in  general  the 
Federal  courts  when  called  upon  to  apply  State  laws  will 
follow  the  last  interpretation  given  to  them  by  the  re- 
spective State  courts,  this  will  not  necessarily  be  done 
where  a  change  of  construction  by  the  State  courts  has 
been  a  recent  one,  and  not  supported  by  such  a  line  of 
decisions  as  to  have  become,  to  use  the  language  of  the 
opinion  in  Shelby  v.  Guy,9  "a  fixed  and  received  construc- 
tion," and  especially  where  the  earlier  construction  is  one 


7  See  Bates,  Federal  Procedure  at  Law. 

8  6  Pet.  291 ;  8  L.  ed.  402. 

9 11  Wh.  361 ;  6  L.  ed.  495. 


LAW  OF  THE  UNITED  STATES  445 

that  for  a  considerable  period  of  time  had  been  the  uni- 
formly accepted  one  in  the  State  courts. 

As  will  later  appear,  the  Supreme  Court  has  held  quite 
firmly  to  the  doctrine  that  the  construction  by  the  State 
courts  of  the  law  relating  to  real  property  is  to  be  followed 
by  the  Federal  courts,  but  in  the  recent  case  of  Kuhn  v. 
Fairmont  Coal  Co.10  the  court  hold  that  this  shall  be  the 
practice  only  where  the  State  determinations  have  be- 
come established  rules  of  property  and  action  prior  to 
the  accruing  of  the  rights  of  the  parties  litigant. 

In  an  earlier  chapter  have  been  considered  the  circum- 
stances under  which  the  Federal  courts  refuse  to  be  bound 
by  the  construction  given  to  State  law  by  the  State  courts 
when  inpairment  of  the  obligation  of  contracts  is  involved. 

Federal  courts  and  the  common  law 

The  general  principle  may  be  stated  that  there  is  no 
Federal  common  law;  in  other  words,  that  the  law  which 
the  Federal  courts  apply  consists  wholly  and  exclusively 
of  the  Federal  Constitution,  treaties,  the  statutes  of  Con- 
gress, and  the  laws  common  or  statutory  of  the  several 
States  of  the  Union. 

The  common  law  of  the  States  consists  of  the  principles 
of  the  English  common  law,  developed  and  modified  by 
American  custom  and  judicial  precedent.  Having  this 
great  substratum  of  the  English  common-law  principles, 
the  non-statutory  law  of  the  several  States  is,  in  very 
many  respects,  the  same  throughout  the  United  States. 
But  in  other  respects,  statutory  enactment  and  divergent 
customs  and  judicial  determinations  have  led  to  important 
differences. 

In  general,  however,  excepting  where  statutes  have 
expressly  amended  the  English  common  law  as  it  was  at 
the  time  of  the  separation  from  England,  or  where  clear 

10  215  U.  S.  602;  30  Sup.  Ct.  Rep.  140;  54  L.  ed.  228. 


446  PRINCIPLES  OF  THE  CONSTITUTIONAL 

judicial  dicta  to  the  contrary  are  to  be  found,  the  general 
doctrines  of  the  English  common  taw  are  held  to  be  in 
force.11 

Strictly  applying  the  doctrine  that  the  Federal  courts, 
when  exercising  jurisdiction  derived  from  the  character 
of  the  parties  to  the  causes  tried,  will  apply  the  laws  of 
the  States  applicable  thereto,  there  is  left  no  opportunity 
for  the  creation  of  a  true  Federal  common  law,  outside 
and  independent  of  the  Federal  Constitution  and  the 
treaties  entered  into  and  the  laws  passed  in  pursuance 
thereof. 

That  the  Federal  courts  have  no  jurisdiction  derived 
directly  from  the  common  law  has  not  been  questioned 
since  the  early  case  of  Ex  parte  Bollman.12 

That  the  Federal  courts  not  only  have  no  common- 
law  jurisdiction,  but  that,  generally  speaking,  there  is  no 
Federal  common-law  as  distinguished  from  statute  law 
(Constitution,  treaties,  acts  of  Congress)  was  declared 
in  the  comparatively  early  case  of  Wheaton  v.  Peters.13 

Interstate  commerce  and  common  law 

This  general  doctrine  that  there  is  no  Federal  common- 
law  requires,  however,  some  explanation,  if  not  qualifica- 
tion. In  the  first  place,  with  reference  to  those  matters 
of  which  interstate  commerce  is  the  most  important  ex- 
ample, general  common-law  principles  are  held,  in  the 
absence  of  express  legislative  provisions  to  the  contrary, 
to  apply,14  and  the  principle  here  stated  would  seem  to  be 

11  Louisiana,  whose  law  is  founded  on  the  Roman  civil  law,  is  an 
exception  to  this,  but  statute  and  judicial  practice  have  brought 
even  here  the  law  a  long  way  towards  conformity  to  the  common 
law. 

12  4  Cr.  75;  2  L.  ed.  554. 

13  8  Pet.  591;  8  L.  ed.  1055. 

14  W.  U.  Tel.  Co.  v.  Call  Publishing  Co.,  181  U.  S.  92;  21  Sup.  Ct. 
Rep.  561;  45  L.  ed.  765. 


LAW  OF  THE  UNITED  STATES  447 

applicable  with  reference  to  all  other  matters  falling  within 
the  control  of  the  Federal  Government. 

General  commercial  law 

In  Olcott  v.  The  Supervisors  15  Justice  Strong,  speaking 
for  the  court,  says:  "It  must  be  kept  in  mind  that  it  is 
only  decisions  upon  local  questions,  or  adjudications  upon 
the  meaning  of  the  Constitution  or  statutes  of  a  State, 
those  which  are  peculiar  to  the  several  States,  which  the 
Federal  courts  adopt  as  rules  for  their  own  judgments." 

The  doctrine  that  when  the  question  is  not  one  of  pecu- 
liarly local  law  and  interest,  the  Federal  courts  will  deter- 
mine for  themselves,  without  reference  to  the  decisions  of 
local  courts,  what  the  law  is,  even  though  it  be  with  refer- 
ence to  subjects  exclusively  within  the  legislative  control 
of  the  States,  and  over  which  the  Federal  courts  obtain 
jurisdictional  power  only  by  reason  of  the  citizenship  of 
the  parties  litigant,  has  received  special  application  in  the 
field  of  commercial  law.  This  principle  was  first  laid 
down  in  the  Supreme  Court  in  the  case  of  Swift  v. 
Tyson.16 

The  doctrine  thus  declared  in  Swift  v.  Tyson  has  con- 
tinued to  guide  the  Supreme  Court.  Under  its  operation 
it  has  come  about  that  it  depends  in  many  cases  upon 
whether  suit  is  brought  in  a  Federal  or  a  State  court,  as  to 
what  law  will  be  held  applicable  to  the  matter  in  dispute. 

Summing  up  the  discussion  of  the  topic  of  Federal 
courts  and  State  laws,  it  is  apparent  that  in  a  number  of 
directions  the  Federal  courts,  while  deriving  jurisdiction 
from  the  nature  of  the  parties  but  presumably  applying 
State  law,  have  in  fact  built  up  for  themselves  a  con- 
siderable body  of  law  which  is  neither  laid  down  in  the 
Federal  Constitution,  treaties  and  laws  of  Congress  nor 


15 16  Wall.  678;  21  L.  ed.  382. 
w  16  Pet.  lj  10  L.  ed.  865. 


448  PRINCIPLES  OF  CONSTITUTIONAL  LAW 

in  conformity  with  the  laws  of  the  States  as  determined 
by  their  respective  tribunals. 

Whether  this  body  of  law  may  properly  be  termed 
Federal  common  law  may  possibly  be  questioned.  It  is 
unquestionably  Federal  in  the  sense  that  it  owes  it  auth- 
ority to,  and  is  applied  by,  the  Federal  courts;  and  it  is 
common  in  that  it  may  be  enforced  by  the  Federal  courts 
throughout  the  Union.  There  is,  however,  good  reason 
for  holding  that  it  is  essentially  State  law.  The  fact  that 
it  differs  from  the  law  as  laid  down  by  the  State  courts  is 
due  to  the  peculiar  circumstance  that,  under  our  judicial 
system,  two  co-ordinate  sets  of  courts  have  the  power  to 
interpret  and  determine  the  common  law  of  the  several 
States.  In  other  words,  the  Federal  courts  have  taken  the 
position  that,  when  sitting  for  the  enforcement  of  State 
laws,  they  do  not  sit  as  tribunals  subordinate  to  the  State 
courts,  but  as  tribunals  co-ordinate  with  them;  and,  there- 
fore, that  they  have  an  independent  right  to  determine 
what  is  the  non-statutory  law  of  the  State,  using  for  that 
purpose  the  same  sources  of  information  that  the  State 
courts  use  in  determining  for  themselves  the'same  facts. 


CHAPTER  XLIV 

SUITS   BETWEEN   STATES   AND   TO   WHICH   A   STATE   OR   THE 
UNITED   STATES   IS   A   PARTY   PLAINTIFF 

Article  III  of  the  Constitution  provides  that  the  judicial 
power  of  the  United  States  shall  extend  "to  controversies 
between  two  or  more  States." 

The  most  important  class  of  cases  which  have  required 
the  exercise  of  the  authority  granted  to  the  Supreme 
Court  to  adjudicate  between  States  have  been  those  re- 
lating to  disputed  boundaries.  Of  this  class  a  very  con- 
siderable number  of  cases  have  been  adjudicated. 

In  the  earlier  of  these  cases  it  was  urged  that  the  juris- 
diction of  the  Supreme  Court  extended  only  to  judicial 
controversies  between  the  States,  and  that  boundary 
disputes,  being  political  in  character,  did  not  fall  within 
the  grant.  The  point  was,  however,  overruled.1 

In  Louisiana  v.  Texas,2  complaint  was  made  that  the 
agents  of  the  defendant  State  were  administering  certain 
quarantine  laws  in  a  manner  that  discriminated,  and  were 
intended  to  discriminate,  against  citizens  of  the  complain- 
ant State.  Upon  demurrer  it  was  held  that  that  State 
had  not  a  direct  interest  in  the  premises  and  was,  there- 
fore, not  entitled  to  bring  suit. 

But  in  Missouri  v.  Illinois  3  it  was  held  that  a  State's 
interest  in  the  health  of  its  citizens  was  sufficiently  sub- 

1  For  the  argument,  see  especially  the  opinion  of  Justice  Baldwin 
in  Rhode  Island  v.  Massachusetts,  12  Pet.  657;  9  L.  ed.  1233. 
2 176  U.  S.  1;  20  Sup.  Ct.  Rep.  251;  44  L.  ed.  347. 
3  180  U.  S.  208;  21  Sup.  Ct.  Rep.  331;  45  L.  ed.  497. 
29  449 


450  PRINCIPLES  OF  THE  CONSTITUTIONAL 

stantial  and  direct  to  enable  it  to  prosecute  a  suit  to 
prevent  another  State  from  constructing  and  operating 
a  drainage  system  which  would  pollute  a  river  furnish- 
ing the  water  supply  to  the  inhabitants  of  the  former 
State. 

In  Kansas  v.  Colorado  4  was  raised  the  question  whether 
one  State  may  obtain  an  order  from  the  Supreme  Court 
restraining  another  State  from  operating  irrigation  works 
of  such  a  character  as  to  deplete  the  water  supply  of  a 
river  rising  in  that  State  and  flowing  into  and  through 
the  complainant  State.  It  was  held  that  the  controversy 
was  of  a  justiciable  nature,  and  would  be  entertained  by 
the  court.  As  to  the  law  to  be  applied,  the  court  held 
itself  bound  by  the  law  of  neither  State,  and  declared: 
"  Sitting,  as  it  were,  as  an  international,  as  well  as  a 
domestic  tribunal,  we  apply  Federal  law,  State  law,  and 
international  law  as  the  exigencies  of  the  particular  case 
may  demand." 

The  case  of  Georgia  v.  Tennessee  Copper  Co.,5  though 
not  one  between  States,  illustrates  a  further  definition  by 
the  Supreme  Court  of  what  will  constitute  a  justiciable 
interest  upon  the  part  of  a  State  enabling  it  to  seek  relief 
by  Federal  judicial  process.  Here  an  injunction  was 
granted,  at  the  suit  of  the  State  of  Georgia,  to  enjoin 
the  defendant  company  located  in  the  State  of  Tennessee 
from  discharging  noxious  gases  from  its  works  over  the 
border  of  the  State  upon  the  territory  of  the  plaintiff. 
In  its  opinion  the  court  observed  that  it  is  proper  to  grant 
relief  to  a  State,  as  a  quasi-sovereign  body,  under  cir- 
cumstances which  would  not  warrant  it  in  a  suit  between 
private  persons. 

The  interesting  cases  of  New  Hampshire  v.  Louisiana,0 


4 185  U.  S.  125;  22  Sup.  Ct.  Rep.  552;  46  L.  ed.  838. 
5  206  U.  S.  230;  27  Sup.  Ct.  Rep.  618;  51  L.  ed.  1038. 
6 108  U.  S.  76;  2  Sup.  Ct.  Rep.  176;  27  L.  ed.  656. 


LAW  OF  THE  UNITED  STATES  451 

and  South  Dakota  v.  North  Carolina  7  are  considered  in 
the  chapter  dealing  with  the  suability  of  the  States, 

Suits  of  States  against  individuals 

The  question  as  to  the  character  of  interests  requisite 
for  the  institution  and  maintenance  of  suits  by  the  States 
of  the  Union  has  necessarily  to  be  considered  as  well 
when  individuals  have  been  proceeded  against  as  when 
States  have  been  the  parties  defendant.  The  case  of 
Georgia  v.  Tennessee  Copper  Co.  has  been  spoken  of  in  the 
preceding  paragraph.  A  few  other  cases  will  sufficiently 
indicate  the  character  and  extent  of  this  branch  of  the 
Federal  judicial  power. 

In  Pennsylvania  v.  Wheeling  &  B.  Bridge  Co.8  upon 
suit  of  the  plaintiff  State  the  defendant  was,  by  decree, 
ordered  to  remove  or  elevate  a  bridge  which,  under  color 
of  a  Virginia  statute,  it  was  constructing,  on  the  ground 
that  it  obstructed  navigation  to  and  from  the  ports  of 
Pennsylvania,  and  that  the  State,  as  a  State,  was  in- 
terested directly  in  having  the  obstruction  removed. 

In  Wisconsin  v.  Pelican  Insurance  Co.9  was  raised  the 
very  important  question  as  to  the  right  of  a  State  to  sue 
in  the  courts  of  another  State  of  the  United  States  to  re- 
cover pecuniary  penalties  imposed  by  the  criminal  law 
of  the  plaintiff  State.  The  court  held  that  neither  the 
judiciary  article  of  the  Federal  Constitution  authorized 
the  Federal  -courts,  nor  the  full  faith  and  credit  clause 
compelled  the  State  courts  to  entertain  such  a  suit. 

In  Mississippi  v.  Johnson  10  and  Georgia  v.  Stanton  n 
the  Supreme  Court  refused  to  grant  injunctions  restraining 

the  defendants  from   executing  in  the   course  of  their 

* 

7 192  U.  S.  286;  24  Sup.  Ct.  Rep.  269;  48  L.  ed.  448. 

8 13  How.  518;  14  L.  ed.  249. 

9 127  U.  S.  265;  8  Sup.  Ct.  Rep.  1370;  32  L.  ed.  239. 

10  4  Wall.  475;  18  L.  ed.  437. 

"  6  Wall.  50;  18  L.  ed.  721. 


452.  PRINCIPLES  OF  THE  CONSTITUTIONAL 

official  duties,  an  act  of  Congress  which  was  alleged  un- 
constitutionally to  affect  rights  of  the  States.  The  political 
rights,  rights  of  sovereignty,  the  court  held  were  not  sub- 
jects within  the  power  of  the  judiciary  to  determine  and 
protect. 

In  Texas  v.  White  12  proprietary  rights  of  the  State  were 
involved,  and  jurisdiction  was  assumed  by  the  court  and 
relief  granted.  So  also,  in  Craig  v.  Missouri,13  Florida  v. 
Anderson,14  and  Alabama  v.  Burr  15  proprietary  rights 
were  involved  and  jurisdiction  exercised. 

Suits  between  the  United  States  and  a  State  of  the  Union 

Article  III  does  not  in  express  terms  grant  jurisdiction 
in  suits  between  a  State  and  the  United  States,  but  in  a 
number  of  instances  suits  brought  by  the  United  States 
against  individual  States  of  the  Union  have  been  enter- 
tained and  decided  by  the  Supreme  Court. 

In  United  States  v.  North  Carolina  16  an  action  of  debt 
upon  certain  bonds  issued  by  the  defendant  State  was 
tried  and  determined  upon  its  merits,  judgment  being 
rendered  in  favor  of  the  defendant.  No  question  of  juris- 
diction was  discussed  in  the  briefs  of  counsel  or  in  the  opin- 
ion of  the  court.  In  a  later  case,  however,  it  was  declared 
that  "it  did  not  escape  the  attention  of  the  court,  and  the 
judgment  would  not  have  been  rendered,  except  upon  the 
theory,  that  this  court  has  original  jurisdiction  of  a  suit 
brought  by  the  United  States  against  a  State."  17  In 
this  later  case  the  United  States  again  appeared  as  plain- 
tiff in  a  suit  against  a  State,  this  time  with  reference  to  a 

12  7  Wall.  700;  19  L.  ed.  227. 

13  4  Pet.  410;  7  L.  ed.  903. 

14  91  U.  S.  667;  23  L.  ed.  290. 

15 115  U.  S.  413;  6  Sup.  Ct.  Rep.  81;  29  L.  ed.  435. 
16 156  U.  S.  211;  10  Sup.  Ct.  Rep.  920;  34  L.  ed.  336. 
17  United  States  v.Texas,  143  U.  S.  621;  12  Sup.  Ct.  Rep.  488;  36 
L.  ed.  285. 


LAW  OF  THE  UNITED  STATES  453 

matter  of  boundary.     Here  the  question  of  jurisdiction 
was  raised  and  carefully  considered. 

Only  since  1902  may  it  be  said  to  have  been  certainly  de- 
termined that  the  Supreme  Court  may,  the  United  States 
consenting,  assume  jurisdiction  in  suits  brought  by  a  State 
of  the  Union  against  the  United  States.  In  Chisholm  v. 
Georgia,18  Chief  Justice  Jay  had  indicated,  obiter,  that 
such  a  suit  would  not  be  entertained  for  the  reason  that 
the  court  would  be  without  power  to  enforce  its  orders 
should  judgment  be  rendered  against  the  defendant.  In 
Florida  v.  Georgia,19  the  United  States  was  allowed  by 
the  court  to  intervene  in  a  suit  between  two  States,  but 
without  becoming  one  of  the  parties  to  the  record.  Also, 
in  Mississippi  v.  Johnson  20  it  was  indicated  that  in  a  proper 
suit  a  bill  might  be  filed  by  a  State  against  the  United 
States.  Finally,  in  Minnesota  v.  Hitchcock,21  decided  in 
1902,  jurisdiction  was  squarely  asserted  and  exercised. 
In  that  case  it  was  held  that  a  suit  by  a  State  to  enjoin 
the  Secretary  of  the  Interior  of  the  United  States  from 
selling  certain  Indian  lands,  was  a  suit  against  the  United 
States  with  reference  to  a  matter  regarding  which  it  had 
consented  to  be  sued. 

Suits  between  a  State  and  foreign  States  or  their  citizens 

As  regards  controversies  "'between  a  State  ....  and 
foreign  States,  citizens,  or  subjects,"  it  may  be  said  that 
no  such  suits  have  ever  been  brought,  and  one  can,  there- 
fore, only  speculate  as  to  the  extent  of  Federal  judicial 
power  under  this  clause.  We  do  know,  however,  by  ju- 
dicial determination,  that  neither  a  "Territory;"  22  an 


18  2  Ball.  419;  1  L.  ed.  440. 

19 11  How.  293;  13  L.  ed.  702. 

20  4  Wall.  475;  18  L.  ed.  437. 

21 185  U.  S.  373;  22  Sup.  Ct.  Rep.  650;  46  L.  ed.  954. 

22  Smith  v.  United  States,  1  Wash.  Terr.  269. 


454  PRINCIPLES  OF  CONSTITUTIONAL  LAW 

Indian  tribe; 23  nor  the  District  of  Columbia  24  is  a  " State " 
within  the  meaning  of  the  word  as  used  in  this  clause  of 
the  Constitution. 

Whether  or  not,  if  a  suit  were  brought  by  a  foreign 
State,  it  would  be  entertained  by  the  Supreme  Court,  is 
very  doubtful.  A  foreign  State  could  not,  of  course,  be 
compelled  to  appear  as  a  party  defendant  in  such  a  suit, 
and  reason  might,  therefore,  seem  to  suggest  that  it 
should  not  be  permitted  to  appear  as  a  party  plaintiff 
unless,  of  course,  the  defendant  State  should  give  its 
consent.  Madison  took  this  view:  "I  do  not  conceive," 
he  said,  "that  any  controversy  can  ever  be  decided  in 
these  courts  between  an  American  State  and  a  foreign 
State,  without  the  consent  of  the  parties.  If  they  consent, 
provision  is  here  made."  Story,  in  his  Commentaries, 
takes  the  same  view.  On  the  other  hand,  however,  as  we 
shall  find  in  the  next  chapter,  the  Supreme  Court  has 
entertained  suits  brought  by  the  United  States  against 
States  of  the  Union  without  their  consent,  although  they 
are  not  permitted  to  sue  the  United  States  without  its 
consent.  Still  different  is  the  obiter  doctrine  declared  by 
the  Supreme  Court  in  the  case  of  Hans  v.  Louisiana  ap- 
proving the  dissenting  opinion  of  Justice  Iredell  in  Chis- 
holm  v.  Georgia,  according  to  which  it  was  declared  not 
to  have  been  the  intention  of  the  framers  of  the  Constitu- 
tion to  create  any  new  remedies  unknown  to  the  law. 
From  this  it  would  follow  that  the  Supreme  Court  could 
not  take  jurisdiction  of  a  case  between  a  foreign  State  and 
a  State  of  the  Union,  even  with  the  consent  of  both 
parties. 

23  Cherokee  Nation  v.  Georgia,  5  Pet.  1;  8  L.  ed.  25. 

24  Hepburn  v.  Ellzev,  2  Cr.  445;  2  L.  ed.  332. 


CHAPTER  XLV 

THE   SUABILITY   OF   STATES 

A  sovereign  State  may  not  be  sued  without  its  consent 

That  a  sovereign  is  not  subject  to  suit,  without  its  con- 
sent, is  a  principle  that  has  come  down  unchallenged  since 
the  time  of  Rome.  It  has  found  expression  in  the  rule 
that  "the  sovereign  can  do  no  wrong"  and  has  been  adopted 
by  the  English  Common  Law  as  fully  as,  indeed,  if  any- 
thing, more  fully  than  by  the  systems  of  jurisprudence 
founded  upon  the  Civil  Law. 

In  Civil  Law  countries  the  State  is  often  held  liable  in 
actions  based  upon  the  torts  of  its  agents  as  well  as  in 
those  of  a  contractual  nature ;  whereas,  in  the  United  States 
the  individual  whose  rights  have  been  violated  by  persons 
acting  under  State  authority  has  no  remedy  against  the 
State,  except  by  express  permission,  and  this  permission 
has  never  been  granted  except  with  reference  to  contract 
claims.  The  injured  individual  has,  however,  right  of 
action  against  the  public  officials  by  whose  illegal  acts  he 
has  been  wronged,  but  these  officials  may  be  financially 
irresponsible,  and  thus  the  remedy,  in  fact,  be  of  no  value. 
In  the  case  of  Chisholm  v.  Georgia,1  decided  in  1793,  it 
was  held  that,  under  the  terms  of  the  Federal  Constitution, 
which  provided  that  the  judicial  power  of  the  Federal 
Government  should  extend  to  all  cases  "between  a  State 
and  citizens  of  another  State,"  a  State  may  be  made  party 
defendant  in  a  suit  brought  by  a  citizen  of  another  State. 


1 2  Dall.  419;  1  L.  ed.  440. 

455 


456  PRINCIPLES  OF  THE  CONSTITUTIONAL 

The  popular  objection  to  this  decision  immediately 
aroused  and  manifested  in  the  adoption  of  the  Eleventh 
Amendment  is  a  matter  of  familiar  history.  The  phrase- 
ology that  the  judicial  power  of  the  United  States  "shall 
not  be  construed  to  extend,"  instead  simply  that  it  "shall 
not  extend"  to  any  suit  in  law  or  equity  commenced  or 
prosecuted  against  one  of  the  United  States  by  citizens 
of  another  State,  or  by  citizens  or  subjects  of  any  foreign 
State,  was  employed  in  order  to  give  to  the  Amendment 
a  retroactive  effect,  and  thus  defeat  suits  similar  to  that 
of  Chisholm  v.  Georgia,  already  pending.  And  thus  when 
the  first  of  these  pending  cases  came  before  the  Supreme 
Court,  it  declared,  in  a  unanimous  opinion,  that  all  these 
cases  should  be  dismissed  because  of  want  of  jurisdiction.2 

It  will  be  observed  that  the  Eleventh  Amendment  does 
not  in  terms  declare  that  the  judicial  power  of  the  United 
States  shall  not  be  construed  to  extend  to  suits  brought 
against  a  State  by  its  own  citizens.  Nor  is  there  anywhere 
in  the  Constitution  a  declaration  that  the  United  States 
itself  shall  not  be  sued  by  one  of  its  own  citizens.  The 
Supreme  Court  has,  however,  held  that,  in  the  absence 
of  an  express  grant  of  jurisdiction,  such  suits  are,  by  the 
generally  accepted  principles  of  public  law,  beyond  the 
jurisdiction  of  the  courts.  Indeed,  in  the  case  of  Hans  v. 
Louisiana  3  the  court  held  that  the  decision  in  Chisholm 
v.  Georgia  had  been  an  erroneous  one  in  holding  that  a 
State  could  be  sued  by  a  citizen  of  another  State. 

In  New  Hampshire  v.  Louisiana  4  the  Supreme  Court 
refused  to  countenance  the  attempt  of  citizens  to  evade 
the  operations  of  the  Eleventh  Amendment  by  transferr- 
ing their  pecuniary  claims  to  another  State  and  having 
that  State  bring  suit  in  their  behalf. 

2  Hollingsworth  v.  Virginia,  3  Ball.  378;  1  L.  ed.  644. 
3 134  U.  S.  1;  10  Sup.  Ct.  Rep.  504;  33  L.  ed.  842. 
4 108  U.  S.  76;  2  Sup.  Ct.  Rep.  176;  27  L.  ed.  656. 


LAW  OF  THE  UNITED  STATES  457 

In  the  case  of  South  Dakota  v.  North  Carolina,5  how- 
ever, the  true  party  of  interest  was  shown  to  be  the  plain- 
tiff State.  Jurisdiction  was  assumed  by  the  Supreme  Court 
and  a  judgment  and  decree  awarded  against  the  defendant 
State. 

Cohens  v.  Virginia 6  held  that  the  Eleventh  Amendment 
did  not  prevent  a  suit,  originally  instituted  by  a  State 
against  an  individual,  from  being  appealed  to  the  Supreme 
Court  by  the  individual  for  the  purpose  of  asserting  a 
constitutional  right  as  a  defense  against  the  charge  made 
against  him  by  the  State. 

In  Bank  of  the  United  States  v.  The  Planters'  Bank  of 
Georgia 7  it  was  held  that  a  suit  against  a  corporation 
chartered  and  partly  owned  by  the  State  was  not  a  suit 
against  the  State.  The  principle  laid  down  in  this  case 
was  again  applied  in  the  cases  of  Briscoe  v.  Bank  of  Ken- 
tucky,8 and  Bank  of  Kentucky  v.  Wister,9  although  the 
State  in  these  cases  was  the  exclusive  owner  of  the  stock 
of  the  bank. 

Effect  of  Eleventh  Amendment  upon  Federal  constitutional 

rights  guaranteed  against  State  violation 
In  a  series  of  great  cases  the  Supreme  Court  of  the  United 
States  has  laid  down  the  doctrine  that  the  Eleventh 
Amendment  does  not  grant  to  States  nor  to  their  agents  a 
power,  unrestrainable  by  judicial  process,  either  to  inter- 
fere with  the  exercise  of  Federal  rights  or,  under  color  of 
unconstitutional  legislation,  to  violate  the  private  rights 
of  individuals.  Where  this  danger  has  been  threatened, 
writs  of  injunction  have  been  issued,  and,  for  the  perform- 


5 192  U.  S.  286;  24  Sup.  Ct.  Rep.  269;  48  L.  ed.  448. 

6  6  Wh.  264;  5  L.  ed.  257. 

7  9  Wh.  904 ;  6  L.  ed.  244. 

8 11  Pet.  257;  9  L.  ed.  709. 
9  2  Pet,  318;  7  L.  ed.  437. 


458  PRINCIPLES  OF  THE  CONSTITUTIONAL 

ance  by  State  officials  of  purely  ministerial  acts  prescribed 
by  law,  mandamus  has  been  awarded.10 

Acting  under  the  right  thus  declared  of  preventing  a 
State,  or  rather  the  officials  of  a  State,  from  acting  under 
laws  unconstitutional,  either  because  impairing  the  ob- 
ligation of  contracts,  or  taking  property  without  due 
process  of  law  the  Federal  courts,  while  declaring  them- 
selves unable  to  secure  to  private  individuals  an  enforce- 
ment of  their  claims  against  States,  have  nevertheless 
been  able  to  extend  their  protecting  power  to  prevent  the 
States  from  taking  action  upon  their  part  to  enforce  against 
individuals  and  against  Federal  officials  claims  not  sup- 
ported by  valid  laws. 

In  a  number  of  cases,  however,  the  Supreme  Court  has 
not  permitted  this  principle  of  the  legal  responsibility  of 
the  agents  of  a  State  to  countenance  what  is  in  actual  effect 
a  suit  not  against  them  personally,  but  against  them  offici- 
ally as  agents  of  the  State,  and,  therefore,  in  reality  against 
the  States  themselves  whose  officials  they  are.  Nor  has 
the  court  been  willing  to  command  the  performance  by  a 
State  official  of  other  than 'mere  ministerial  acts  in  which 
no  official  discretion  has  been  involved.  The  distinctions 
which  have  had  to  be  drawn  are,  however,  in  many  in- 
stances, very  fine,  and  cannot  be  briefly  outlined.  The 
more  important  cases  are  cited  in  the  footnote.11 


10  Hans  v.  Louisiana,  134  U.  S.  1;  10  Sup.  Ct.  Rep.  504;  33  L.  ed. 
842;  United  States  v.  Peters,  5  Cr.  115;  3  L.  ed.  53. 

11  Louisiana  v.  Jumel,  107  U.  S.  711;  2  Sup.  Ct.  Rep.  128;  27  L.  ed. 
448;  Hagood  v.   Southern,  117  U.  S.  52;  6  Sup.  Ct.  Rep.  608;  29 
L.  ed.  805;  Cunningham  v.  Macon  &  B.  R.  R.  Co.,  109  U.  S.  446;  3 
Sup.  Ct.  Rep.  292;  27  L.  ed.  992;  Pennoyer  v.  McConnaughy,  140 
U.  S.  1;  11  Sup.  Ct.  Rep.  699;  35  L.  ed.  363;  In  re  Ayers,  123  U.  S. 
443;  8  Sup.  Ct.  Rep.  164;  31  L.  ed.  216;  Antoni  v.  Greenhow,  107 
U.  S.  769;  2  Sup.  Ct.  Rep.  91;  27  L.  ed.  468;  In  re  Tyler,  149  U.  S. 
164;  13  Sup.  Ct.  Rep.  785;  37  L.  ed.  689;  Scott  v.  Donald,  165  U.  S. 
58;  17  Sup.  Ct.  Rep.  265;  41  L.  ed.  632;  Smith  v.  Reeves,  178  U.  S. 


LAW  OF  THE  UNITED  STATES  459 

Suits  to  recover  specific  pieces  of  property  held  by  the  State 
Thus  far  in  the  discussion  of  the  suability  of  the  State, 
according  to  American  constitutional  law,  reference  has 
been  had  to  suits  involving  the  recovery  of  money  judg- 
ments or  the  issuance  of  writs  of  mandamus  or  of  injunc- 
tion to  State  officials.  There  now  is  to  be  considered  the 
question  whether  the  principles  which  have  been  laid  down 
are  sufficient  to  warrant  suits  brought  by  individuals  to 
recover  possession  of  specific  pieces  of  property  held,  in 
their  official  capacities,  by  officials  of  the  States  or  of  the 
United  States. 

In  United  States  v.  Clark  12  it  was  declared  by  Marshall 
that  the  United  States  was  not  suable  of  common  right, 
and  unless  the  plaintiff  could  bring  his  suit  within  the 
terms  of  some  permissive  act  of  Congress,  the  court  could 
not  entertain  it.  In  the  Siren  v.  United  States  13  this  was 
quoted  with  approval  and  the  further  observation  made 
that  the  exemption  from  suit  extends  to  property  of  the 
United  States.  The  interesting  point  was,  however,  made 
in  this  case,  that  though  a  lien  attaching  to  a  piece  of 
property  owned  by  the  State  is  not  enforceable,  the  lien 
itself  may  exist,  and  becomes  enforceable  as  soon  as  the 
State  voluntarily  sells  or  otherwise  parts  with  the  actual 
possession  of  the  piece  of  property. 

In  United  States  v.  Lee,14  however,  the  court  held  that 


436;  20  Sup.  Ct,  Rep.  919;  44  L.  ed.  1140;  Poindexter  v.  Greenhow, 
114  U.  S.  270;  5  Sup.  Ct.  Rep.  903;  29  L.  ed.  185;  McGahey  v.  Vir- 
ginia, 135  U.  S.  662;  10  Sup.  Ct.  Rep.  972;  34  L.  ed.  304;  Reagan  v. 
Trust  Co.,  154  U.  S.  362;  14  Sup.  Ct.  Rep,  1047;  38  L,  ed,  1014; 
Fitts  v.  McGhee,  172  U.  S.  516;  19  Sup.  Ct,  Rep.  269;  43  L,  ed.  535; 
In  re  Young,  209  U.  S.  123;  28  Sup.  Ct.  Rep.  441;  52  L.  ed.  714.  See, 
also,  Willoughby  Constitutional  Law  of  the  United  States,  Chap- 
ter LIV,  "The  Suability  of  States." 

12  8  Pet.  436;  8  L.  ed.  1001. 

13  7  Wall.  152;  19  L.  ed.  129. 

i4 106  U.  S.  196;  1  Sup.  Ct.  Rep.  240;  27  L.  ed.  171. 


460  PRINCIPLES  OF  CONSTITUTIONAL  LAW 

a  suit  in  ejectment  against  Federal  officers  in  charge  of 
property  ownership  of  which  was  claimed  by  the  United 
States  (its  attorney-general  intervening  in  the  suit  for  the 
purpose  of  setting  up  this  claim)  was  not  a  suit  against 
the  United  States.  In  Tindal  v.  Wesley,15  this  doctrine 
was  applied  to  one  of  the  States  of  the  Union.16 

15 167  U.  S.  204;  17  Sup.  Ct.  Rep.  770;  42  L.  ed.  137. 

16  But  see  Stanley  v.  Schwalby,  162  U.  S.  255;  16  Sup.  Ct.  Rep. 
754;  40  L.  ed.  960;  and  also  the  definition  of  the  doctrine  of  United 
States  v.  Lee  as  given  in  Cunningham  v.  Macon  &  B.  R.  R.  Co.,  109 
U.  S.  446;  3  Sup.  Ct.  Rep.  292;  27  L.  ed.  992.  The  latest  judicial 
phases  of  the  suability  of  the  United  States  are  to  be  found  in  Belk- 
nap  v.  Schild,  161  U.  S.  10;  16  Sup.  Ct.  Rep.  443;  40  L.  ed.  599; 
Minnesota  v.  Hitchcock,  185  U.  S.  373;  22  Sup.  Ct.  Rep.  650;  46  L. 
ed.  954;  Oregon  v.  Hitchcock,  202  U.  S.  60;  26  Sup.  Ct.  Rep.  568;  50 
L.  ed.  935,  and  International  Postal  Supply  Co.  v.  Bruce,  194  U.  S. 
601;  24  Sup.  Ct.  Rep.  820;  48  L.  ed.  1134. 


CHAPTER  XL VI 

ADMIRALTY   AND   MARITIME   JURISDICTION 

Admiralty  and  maritime  jurisdiction  defined 

Section  II,  Clause  I,  of  Art.  Ill  provides  that  "the 
judicial  power  shall  extend  ....  to  all  cases  of  admiralty 
and  maritime  jurisdiction." 

Maritime  jurisdiction,  as  the  name  itself  indicates,  is 
the  jurisdiction  over  matters  relating  to  the  sea.  To  a 
very  considerable  extent,  then,  admiralty  jurisdiction  and 
maritime  jurisdiction  are  of  like  meaning.  The  terms  are 
not,  however,  synonymous.  Admiralty  now  has  refer- 
ence, primarily,  to  the  tribunals  in  which  the  causes  are 
tried;  maritime  to  the  nature  of  the  causes  tried.  The 
admiralty  and  maritime  jurisdiction  of  the  United  States 
is  then  of  a  double  nature;  that  over  cases  depending  upon 
acts  committed  upon  navigable  waters;  and  that  over 
contracts,  and  other  transactions  connected  with  such 
navigable  waters.  In  the  former  class  of  cases  the  juris- 
diction is  given  by  the  locality  of  the  act;  in  the  latter  case 
by  the  character  of  the  act  or  transaction. 

The  cases  falling  within  the  Federal  admiralty  juris- 
diction because  of  the  locality,  i.  e.,  of  acts  upon  the  high 
seas  and  other  navigable  waters,  are,  broadly  speaking, 
of  two  classes;  those  of  prize,  arising  juri  belli;  and  those 
acts,  torts,  injuries,  etc.,  which  have  no  reference  to  a 
state  of  war. 

Those  cases  which  fall  within  the  admiralty  jurisdiction 
purely  because  of  their  maritime  nature  are  those  arising 
out  of  contracts,  claims,  etc.,  with  reference  to  maritime 

461 


462  PRINCIPLES  OF  THE  CONSTITUTIONAL 

operations.  In  actions  of  tort  the  test  determining  juris- 
diction is  locality;  in  contracts  it  is  the  subject  matter.1 

According  to  the  earlier  decisions,  the  Federal  admiralty 
jurisdiction  was  confined  to  cases  arising  upon  the  high 
seas  and  rivers  as  far  as  the  ebb  and  flow  of  the  tide  ex- 
tended. Beginning,  however,  with  Waring  v.  Clarke,  and 
The  Genesee  Chief,2  decided  in  1851,  the  earlier  cases  were 
overruled,  and  the  Federal  power  declared  to  extend  over 
all  waters  that  are  navigable. 

The  Federal  admiralty  jurisdiction  being  wholly  inde- 
pendent of  the  power  to  regulate  interstate  commerce, 
and  attaching  whenever  the  cause  of  action  has  arisen 
on  navigable  waters,  jurisdiction  extends  over  all  cases 
arising  upon  navigable  waters  even  though  they  be  wholly 
within  the  confines  of  a  particular  State,  provided  they  be 
connecting  links  in  a  chain  of  commercial  communication 
between  the  States.  In  The  Daniel  Ball 3  the  court  say : 
"  Those  rivers  must  be  regarded  as  public  navigable  rivers 
in  law  which  are  navigable  in  fact.  And  they  are  naviga- 
ble in  fact  when  they  are  so  used,  or  are  susceptible  of 
being  used,  in  their  ordinary  condition,  as  highways  for 
commerce,  over  which  trade  and  travel  are  or  may  be  con- 
ducted in  the  customary  modes  of  trade  and  travel  on 
water.  And  they  constitute  navigable  waters  of  the  United 
States  within  the  meaning  of  the  acts  of  Congress  in  contra- 
distinction from  the  navigable  waters  of  the  States,  when 
they  form  in  their  ordinary  condition  by  themselves,  or 
by  uniting  with  other  waters,  a  continued  highway  over 
which  commerce  is  or  may  be  carried  on  with  other  States 
or  foreign  countries  in  the  customary  modes  in  which  such 
commerce  is  conducted  by  water." 


1  Waring  v.  Clarke,  5  How.  441;  12  L.  ed.  226;  New  Jersey  Steam 
Navigation  Co.'  v.  Merchants'  Bank,  6  How.  344;  12  L.  ed.  465. 
2 12  How.  443;  13  L.  ed.  1058. 
3 10  Wall,  557;  19  L.  ed,  999. 


LAW  OF  THE  UNITED  STATES  463 

In  The  Montello  4  the  same  principle  was  applied  to  the 
Fox  River  of  Wisconsin,  although  its  navigability  was 
interrupted  by  rapids  and  falls  around  which  portages 
had  to  be  made. 

Federal  admiralty  jurisdiction  is  not  affected  by  the 
fact  that  at  the  time  of  the  accruing  of  the  cause  of  action 
the  vessel  or  vessels  concerned  are  on  a  voyage  between 
ports  of  the  same  State.5 

In  later  cases  the  admiralty  jurisdiction  of  the  United 
States  has  been  construed  to  extend  to  cases  arising  on 
canals.6 

In  the  first  of  the  cited  cases  it  was  held  that  the  canals 
are  navigable  waters  within  the  meaning  of  admiralty  law; 
in  the  latter  that  canal-boats  are  ships  or  vessels  within 
the  meaning  of  the  same  law. 

It  has  also  been  held  that  repairs  made  to  or  injuries 
sustained  by,  a  ship  while  in  dry  dock  are  maritime  in 
character,  but  the  dry  dock  not  being  itself  used  for  the 
purpose  of  navigation  is  not  a  subject  of  salvage  service 
or  of  admiralty  jurisdiction.7 

Admiralty  jurisdiction  does  not  carry  with  it  general  political 

jurisdiction  over  navigable  waters 

It  has  been  held  in  an  unbroken  line  of  cases  that  the 
grant  to  the  United  States  of  admiralty  jurisdiction  does 
not,  in  itself,  carry  with  it  any  general  or  political  juris- 
diction. That  is  to  say,  unless  Congress  has  expressly 
so  legislated  the  State  courts  still  have  exclusive  cognizance 
of  crimes  committed  upon  their  navigable  waters,  and 
upon  the  seas  within  a  maritime  league  of  the  shore.  In 

4  20  Wall.  430;  22  L.  ed.  391. 

6  The  Belfast,  7  Wall.  624;  19  L.  ed.  266,  overruling  previous  cases 
as  to  this. 

6  Perry  v.  Haines,  191  U.  S.  17;  24  Sup.  Ct.  Rep.  8;  48  L.  ed.  73. 

7  Cope  v.  Vallette  Dry  Dock  Co.,  119  U.  S.  625;  7  Sup.  Ct.  Rep. 
336;  30  L.  ed.  501. 


464  PRINCIPLES  OF  THE  CONSTITUTIONAL 

the  leading  case  of  United  States  v.  Bevans 8  Marshall 
points  out  that  the  delegation  to  the  Federal  judiciary 
carries  with  it,  indeed,  a  legislative  power  to  render  that 
jurisdiction  effective,  but  it  does  not  operate  to  take  the 
navigable  and  territorial  waters  of  a  State  from  without 
the  general  jurisdiction  of  the  State  in  the  manner  that 
districts  purchased  by  the  Federal  Government,  with  the 
consent  of  the  legislature  of  a  State,  for  the  erection  of 
forts,  arsenals,  etc.,  are  so  removed. 

Admiralty  courts 

During  the  colonial  period  admiralty  jurisdiction  in 
this  country  was  exercised  by  vice-admiralty  courts 
created  by  commissions  from  the  British  High  Court  of 
Admiralty,  authority  being 'given  to  the  colonial  author- 
ities by  their  charters  to  establish  these  tribunals.  After 
the  Declaration  of  Independence,  however,  each  of  the 
States,  in  the  exercise  of  their  several  sovereignties,  estab- 
lished admiralty  courts  with  varying  powers.  In  1777 
Congress  appointed  a  standing  committee  to  entertain 
appeals  from  the  State  courts  in  cases  of  maritime  prizes. 
Under  the  Articles  of  Confederation  there  was  established 
by  Congress  a  "Court  of  Appeals  in  cases  of  Capture," 
to  which  appeals  might  be  taken  from  the  State  admiralty 
courts. 

Under  the  present  Constitution  admiralty  jurisdiction 
is  wholly  withdrawn  from  the  States  and  vested  exclusively 
in  the  Federal  courts. 

By  the  Judiciary  Act  of  1789  this  jurisdiction  was  vested 
in  the  district  courts,  where  it  has  since  remained. 

Section  711  of  the  Revised  Statutes  provides  that  the 
district  courts  shall  have  jurisdiction:  "Of  all  civil  causes 
of  admiralty  and  maritime  jurisdiction;  saving  to  suitors, 


8  3  Wh.  336;  4  L.  ed.  404. 


LAW  OF  THE  UNITED  STATES  465 

in  all  cases,  the  right  of  a  common-law  remedy,  where  the 
common-law  is  competent  to  give  it." 

In  all  prize  cases  an  appeal  lies  direct  from  the  district 
to  the  Supreme  Court.  In  other  admiralty  cases  an  ap- 
peal lies  to  the  Circuit  Courts  of  Appeals. 

State  legislative  powers  with  reference  to  admiralty  matters 
It  will  be  observed  that  the  act  vesting  admiralty  juris- 
diction in  the  district  courts  saves  to  suitors,  in  all  cases, 
their  right  to  a  common-law  remedy,  where  that  law  is 
competent  to  give  it.  The  effect  of  this  provision  is  not 
to  permit  the  State  courts  to  exercise  in  any  way  admiralty 
jurisdiction,  but  to  give  to  the  suitor  the  option  of  pursu- 
ing in  those  courts  any  common-law  right  that  he  may 
have.9 

But  in  no  case  may  a  State  court  entertain  a  suit  in  the 
nature  of  an  admiralty  proceeding,  that  is,  to  enforce  a 
maritime  lien  in  rem  against  a  vessel.  This  is  deter- 
mined in  The  Moses  Taylor  10  and  Hine  v.  Trevor.11 

But  though  the  State  courts  may  not  exercise  ad- 
miralty jurisdiction,  it  has  been  held  that  the  State  legis- 
latures may  by  statute  create  maritime  rights,  which  the 
Federal  district  courts,  sitting  as  admiralty  tribunals, 
will  enforce.  In  other  words,  the  State  law-making  body 
may  create  admiralty  rights  which  the  State  courts  may 
not  enforce  as  such,  but  which  the  Federal  courts  may.12 

Legislative  powers  of  Congress  flowing  from  admiralty  and 

maritime  jurisdiction 
The  Constitution  does  not  in  express  terms  confer  upon 

9  Sherlock  v.  Ailing,  93  U.  S.  99;  23  L.  ed.  819. 

10  4  Wall.  411;  18  L.  ed.  397. 

11  4  Wall.  555;  18  L.  ed.  451. 

12  The  Lottawanna,  21  Wall.  558;  22  L.  ed.  654;  The  Glide,  167 
U.  S.  606;  17  Sup.  Ct.  Rep.  930;  42  L.  ed.  296;  The  Hamilton,  207 
U.  S.  398;  28  Sup.  Ct.  Rep.  133;  52  L.  ed.  264. 

30 


466  PRINCIPLES  OF  CONSTITUTIONAL  LAW 

Congress  the  power  to  legislate  with  reference  to  matters 
maritime,  but  the  grant  to  the  judiciary  of  jurisdiction 
over  all  cases  of  admiralty  and  maritime  jurisdiction,  a 
jurisdiction  which  has,  as  we  have  seen,  been  held  to  be 
exclusive,  has  been  construed  to  give  to  the  Federal  legis- 
lature a  power  over  the  law  which  the  Federal  courts  are 
thus  called  upon  to  interpret  and  apply.13 

Though,  as  appears  from  the  foregoing,  Congress,  and 
to  a  certain  extent  the  State  legislatures  as  well,  have  the 
power  to  fix  the  substantive  law  which  the  Federal  ad- 
miralty courts  are  to  apply,  it  is  not  within  the  power  of 
these  law-making  bodies  to  determine  the  sphere  of  ad- 
miralty jurisdiction.  This,  it  has  been  held,  is  a  purely 
judicial  function. 

13  Ex  parte  Garnett,  141  U.  S.  1;  11  Sup.  Ct.  Rep.  840;  35  L.  ed. 
631;  Providence  &  N.  Y.  S.  S.  Co.  v.  Hill  Mfg.  Co.,  109  U.  S.  578;  3 
Sup.  Ct.  Rep.  379;  27  L.  ed.  1038. 


CHAPTER  XL VII 

IMPEACHMENT 

• 

Constitutional  provisions 

The  constitutional  provisions  for  impeachment  are 
contained  in  the  clauses  cited  in  the  footnote.1 

It  is  to  be  observed  that  the  Constitution  makes  no 
mention  as  to  what  persons  shall  be  subject  to  impeach- 
ment. According  to  English  precedent  all  citizens  are  sub- 
ject to  impeachment,  and  it  was  at  first  asserted  by  some 
that  the  same  is  true  in  this  country.  The  limitation  of 
impeachment  to  the  President  and  the  Vice-President  and 
to  civil  officers  of  the  United  States  would,  however,  seem 
to  be  implied  in  the  provision  that  these  persons  shall  be 
removed  from  office  on  impeachment,  and  that  judgment 
in  cases  of  impeachment  shall  not  extend  further  than  to 
removal  from  office  and  disqualification  to  hold  office 
under  the  United  States,  and  it  is  now  generally  agreed 
that  only  civil  officers  may  be  impeached. 

Who  are  civil  officers 

Military  officers  are  not  subject  to  impeachment.  No 
attempt  has  ever  been  made  to  impeach  any  officer  of 
the  army  or  navy,  and,  therefore,  there  have  been  no 
pronouncements  upon  this  point.  But  there  has  been 
no  question  as  to  this  doctrine. 

Members  of  Congress  are  not  officers  of  the  United 
States,  not  being  commissioned  by  the  President.  This 

1  Art.  I,  §  2,  cl.  5;  Art.  I,  §  3,  cl.  6;  Art.  I,  §  3,  cl.  7;  Art.  II,  §  2, 
cl.  1;  Art.  II,  §4. 

467 


468  PRINCIPLES  OF  THE  CONSTITUTIONAL 

point  was  made  at  the  time  of  the  impeachment  of  Senator 
Blount,  a  resolution  to  the  effect  that  he  was  an  officer 
being  negatived  by  a  vote  of  fourteen  to  eleven. 

In  the  case  of  the  impeachment  of  Secretary  of  War 
Belknap,  the  issue  was  raised  whether  a  civil  officer,  in 
anticipation  of  impeachment,  may  by  resignation  escape 
from  liability  to  trial  by  the  Senate.  By  a  vote  of  thirty- 
seven  to  twenty-nine,  seven  not  voting,  it  was  held  that 
the  jurisdiction  of  that  body  had  not  been  ousted  by  the 
resignation  and  by  a  later  vote  it  was  held  that  for  this 
decision  a  two-thirds  approving  majority  was  not  needed. 
And  it  may  be  noted  that,  in  general,  it  has  been  held  that 
the  constitutional  requirement  as  to  the  majority  needed 
for  conviction  applies  only  to  the  final  votes  upon  the 
question  of  guilt. 

For  what  offenses  impeachment  will  lie 

The  constitutional  provision  is  that  impeachment  may 
be  had  for  "treason,  bribery,  or  other  high  crimes  or  mis- 
demeanors." 

The  terms  "treason"  and  "bribery"  require  no  defini- 
tion. Treason  is,  indeed,  defined  in  the  Constitution 
itself,  and  the  offense  of  bribery  is  sufficiently  definite 
and  well  known.  To  the  term  "high  crimes  and  mis- 
demeanors," practice  has  given  a  broad  meaning  that 
brings  within  its  connotation  offenses  not  penal  by  Federal 
statute.  In  the  first  four  impeachment  trials  not  a  single 
charge  rested  upon  a  statute,  and  the  same  was  true  of 
some  at  least  of  the  articles  in  most  of  the  other  trials. 

It  would  also  seem  to  be  established  that  the  offense 
charged  need  not  be  one  committed  in  the  discharge  of 
official  duties. 

In  short  then,  it  may  be  said  that  impeachment  will 
lie  whenever  a  majority  of  the  House  of  Representatives 
are  for  any  reason  led  to  hold  that  the  incumbent  of  a 


LAW  OF  THE  UNITED  STATES  469 

civil  office  under  the  United  States  is  morally  unfit  for 
and  should  no  longer  remain  in  his  position  of  public  trust. 

Punishment 

It  is  constitutionally  provided  that  conviction  upon 
impeachment  must  result  in  removal  from  office.  To  this 
may  be  added  disqualification  to  hold  and  enjoy  in  the 
future  any  office  of  honor,  trust  or  profit  under  the  United 
States.  .  When  a  criminal  offense  has  been  committed 
the  party  convicted  is  still  "liable  and  subject  to  indict- 
ment, trial,  judgment  and  punishment  according  to  law." 

The  power  of  the  President  to  grant  reprieves  or  to 
pardon  does  not  extend  to  cases  of  impeachment. 

Effect  of  dissolution  of  Congress 

Whether  or  not  the  dissolution  of  the  House  preferring 
the  impeachment  operates  to  terminate  the  charges  made 
has  not  been  determined,  the  occasion  for  the  determina- 
tion not  having  arisen.  Reason  and  analogy  with  ordinary 
criminal  proceedings  and  with  English  practice  would 
seem  to  answer  the  question  in  the  negative. 

It  is  scarcely  necessary  to  say  that  the  proceedings  and 
determinations  of  the  Senate  when  sitting  as  court  of 
impeachment  are  not  subject  to  review  in  any  other  court. 


CHAPTER  XL VIII 

THE  ELECTION  OF  THE  PRESIDENT  AND  VICE-PRESIDENT 

The  Executive  Department 

The  President  and  Vice-President  are  the  only  Federal 
executive  officers  for  whose  selection  and  functions  the 
Constitution  makes  direct  provision,  unless,  indeed,  one 
includes  the  Senate  to  which  is  intrusted  participation 
in  the  executive  "functions  of  appointments  and  approval 
of  treaties.  That  certain  great  executive  departments 
should  be  legislatively  established  was  taken  for  granted, 
as  shown,  for  example,  in  the  provision  that  the  President 
"may  require  the  opinion,  in  writing,  of  the  principal 
officers  in  each  of  the  executive  departments,  upon  any 
subject  relating  to  the  duties  of  their  respective  offices;" 
and  that  the  appointment  of  inferior  officers  may  be  by 
Congress  vested  in  the  "Heads  of  Departments."  From 
time  to  time  these  great  executive  departments,  as  well 
as  certain  "commissions"  and  other  executive  bodies  not 
falling  within  any  one  of  the  "departments,"  have  been 
created.  The  description  and  organization  of  these 
bodies  does  not  fall  within  the  scope  of  a  treatise  on  con- 
stitutional law.  We  shall  be  concerned,  however,  with 
the  manner  in  which  all  these  executive  departments 
are  integrated  into  one  great  system  with  the  President 
as  its  head  and  the  extent  of  the  directive  power  which 
the  President  may  exercise  over  the  civil  and  military 
service,  and  which  the  higher  executive  officers  may  exer- 
cise over  their  subordinates. 

In  the  present  chapter  will  be  considered  the  qualifica- 
470 


LAW  OF  THE  UNITED  STATES  471 

tion  for  the  Presidency  and  Vice-Presidency,  and  the 
constitutional  provisions  governing  the  selection  of  per- 
sons to  fill  these  offices. 

Appointment  of  presidential  electors  —Plenary  powers  of  the 
States 

The  Constitution  provides  that  "Each  State  shall 
appoint,  in  such  manner  as  the  legislature  thereof  may 
direct,  a  number  of  electors,  equal  to  the  whole  number 
of  representatives  to  which  the  State  may  be  entitled  in 
the  Congress;  but  no  senator  or  representative,  or  persons 
holding  an  office  of  trust  or  profit  under  the  United  States 
shall  be  appointed  an  elector." 

It  will  be  observed  that  the  Constitution  gives  complete 
power  to  the  States  in  the  selection  of  presidential  electors. 
The  provision  is  that  each  State  shall  appoint  in  such 
manner  as  the  legislature  thereof  may  direct.  There  is 
no  requirement  as  to  their  election  by  the  people. 

As  a  matter  of  fact  during  the  early  years  under  the 
Constitution  in  many  of  the  States  presidential  electors 
were  not  elected  at  all,  but  appointed  by  the  legislatures, 
and  this  practice  did  not  wholly  disappear  until  quite 
recently.  South  Carolina  practiced  legislative  appoint- 
ment until  1860,  and  Colorado  appointed  in  this  manner 
in  1876.  At  the  present  time,  in  all  the  States,  the  electors 
are  chosen  by  popular  ballot  on  a  general  ticket.  It  is, 
however,  within  the  power  of  the  States  to  provide  for 
their  election  by  districts,  and  this  was  done  in  Michigan 
in  1892.  The  constitutionality  of  this  law  was  questioned 
in  the  Supreme  Court  of  the  United  States,  but  was  up- 
held by  that  tribunal  in  McPherson  v.  Blacker.1 

The  States  having  plenary  power  over  the  appointment 
of  electors  may  make  provision  by  law  for  the  contingency 
of  an  elector  dying  between  the  date  of  his  appointment 

1 146  U.  S.  1;  13  Sup.  Ct.  Rep.  3;  36  L.  ed.  869. 


472  PRINCIPLES  OF  THE  CONSTITUTIONAL 

and  the  time  for  the  casting  of  his  vote,  or  by  sickness  or 
accident  being  prevented  from  casting  his  vote. 

Original  provision  of  the  Constitution  as  to  election  of  Presi- 
dent and  Vice-President—Inadequacy  of 

According  to  the  original  provision  of  the  Constitution 
the  electors  might  vote  for  two  persons  without  indicating 
which  was  their  choice  for  President,  and  which  for  Vice- 
President.  The  person  having  the  greatest  number  of 
votes  was  to  be  President,  if  such  number  were  a  majority 
of  the  whole  number  of  electors  appointed;  and  if  there 
were  more  than  one  person  having  such  majority,  and 
having  an  equal  number  of  votes,  the  House  of  Represen- 
tatives was  authorized  by  ballot  to  choose  one  of  them  for 
President.  If  no  person  had  a  majority,  the  House  was 
to  choose  the  President  from  the  five  highest  in  the  list. 

When  so  choosing  the  House  was  to  vote  by  States,  the 
representation  from  each  State  having  one  vote.  In 
every  case,  after  the  choice  of  President,  the  person  having 
the  greatest  number  of  votes  was  to  be  declared  Vice- 
President;  and  if  there  should  remain  two  or  more  having 
equal  votes,  the  Senate  was  to  choose  them  by  ballot. 

Twelfth  Amendment 

The  inadequacy  of  the  original  constitutional  provisions 
for  the  election  of  the  President  and  Vice-President  early 
became  manifest.  John  Adams  became  Vice-President 
in  1796  though  he  did  not  receive  half  the  votes.  In  1800 
Jefferson  and  Burr  received  the  same  number  of  votes, 
and  each  a  majority.  There  was  no  question,  however, 
that  the  electors  desired  that  Jefferson  should  be  Presi- 
dent and  Burr  Vice-President;  but,  had  it  not  been  for 
the  patriotism  of  Hamilton  and  a  few  other  Federalists, 
Burr  would  have  been  selected  President  though  he  had 
not  been  the  choice  of  probably  a  single  elector  for  that 
office.  This  experience  was  sufficient  to  lead  in  1804  to 


LAW  OF  THE  UNITED  STATES  473 

the  adoption  of  the  Twelfth  Amendment  in  substitution 
for  Clause  3  of  §  1,  of  Art.  II. 

Counting  the  votes 

With  reference  to  the  action  of  the  Houses  of  Congress, 
after  the  selection  of  electors  has  been  certified  to  them, 
the  Twelfth  Amendment,  copying  the  language  of  the 
original  provision  of  the  Constitution,  declares  that  "the 
President  of  the  Senate  shall,  in  the  presence  of  the  Senate 
and  House  of  Representatives,  open  all  the  certificates, 
and  the  votes  shall  then  be  counted." 

The  meaning  of  the  last  four  words  has  been*  shrouded 
in  doubt,  and  this  doubt  came  very  near  to  leading  to 
serious  consequences  in  1876-1877.  No  declaration,  it  is 
to  be  observed,  is  made  as  to  who  shall  do  the  counting, 
and  therefore,  who  shall  determine  what  votes  shall  be 
counted  in  case  there  is  question  as  to  their  regularity  or 
correctness.  In  1876,  as  is  well  known,  there  were  enough 
votes,  the  validity  of  which  was  contested,  to  determine 
the  election.  Upon  the  part  of  the  Republicans  it  was 
claimed  that  the  Vice-President  (a  Republican)  should 
do  the  counting.  The  Democrats,  however,  asserted  that 
the  two  Houses  voting  separately  should  perform  this 
duty.  As  the  Democrats  were  then  in  control  of  the  lower 
House,  and  the  Republicans  of  the  Senate,  this  would  have 
meant  a  deadlock.  The  impasse  was  finally  broken,  as  is 
well  known,  by  the  very  doubtful  constitutional  expedient 
of  a  special  electoral  commission  to  which  all  disputed 
cases  should  be  submitted,  the  Congress  being  pledged  to 
be  guided  by  its  decisions. 

Law  of  1887 

By  a  law  of  February  3,  1887,2  the  whole  matter  of  the 
election  of  the  President  is  attempted  to  be  regulated. 

2  24  Stat.  at  L.  393.  For  a  valuable  criticism  of  this  act  see 
Dougherty,  The  Electoral  System  of  the  United  States. 


474  PRINCIPLES  OF  THE  CONSTITUTIONAL 

By  the  first  section  the  second  Monday  in  the  January 
succeeding  their  appointment  is  fixed  for  the  meeting  of 
the  electors  and  the  giving  of  their  votes.  The  postpone- 
ment from  the  date  formerly  in  force,  namely,  the  first 
Wednesday  in  December,  is  to  give  the  States  full  oppor- 
tunity to  determine  any  questions  that  may  arise  with 
reference  to  the  appointment  of  their  respective  electors. 

The  second  section  of  the  act  declares:  "If  any  State 
shall  have  provided,  by  laws  enacted  prior  to  the  day 
fixed  for  the  appointment  of  the  electors,  for  the  final  de- 
termination of  any  controversy  or  contest  concerning  the 
appointment  of  all  or  any  of  the  electors  of  such  State,  by 
judicial  or  other  methods  or  procedures,  and  such  deter- 
minations shall  have  been  made  at  least  six  days  before 
the  time  fixed  for  the  meeting  of  the  electors,  such  deter- 
minations made  pursuant  to  such  law  so  existing  on  said 
day,  and  made  at  least  six  days  prior  to  the  said  time  of 
meeting  of  the  electors,  shall  be  conclusive,  and  shall 
govern  in  the  counting  of  the  electoral  votes  as  provided 
in  the  Constitution,  and  as  hereafter  regulated,  so  far  as 
the  ascertainment  of  the  electors  appointed  by  such  State 
is  concerned." 

The  effect  of  this  section  is,  it  will  be  seen,  not  to  dele- 
gate to  the  States  the  counting  of  the  electoral  votes,  but 
to  determine  what  the  two  Houses  of  Congress,  acting 
concurrently,  will,  under  certain  circumstances,  consider 
conclusive  evidence  as  to  the  regularity  of  the  selection 
of  the  electors  whose  votes  they  are  to  count. 

The  act  goes  on  in  §  3  to  provide  that  the  executive  of 
each  State  shall,  under  the  seal  of  the  State,  transmit  to 
the  Secretary  of  State  of  the  United  States  a  certificate 
showing  what  electors  have  been  appointed,  the  votes 
cast  for  them,  and,  where  there  has  been  a  controversy 
or  contest,  the  manner  in  which  settled.  These  certifi- 
cates the  Secretary  of  State  is  to  publish  in  some  news- 


LAW  OF  THE  UNITED  STATES  475 

paper,  and  at  their  first  meeting  send  copies  thereof  to  the 
two  Houses  of  Congress.  Each  elector  is  also  to  be  sup- 
plied with  the  same  certificate,  in  triplicate,  under  the 
seal  of  the  State.  As  determined  by  a  previous  law,  one 
of  these  copies  is  to  be  sent  by  messenger  to  the  President 
of  the  United  States  Senate  at  Washington,  D.  C.,  one 
to  be  forwarded  to  him  by  mail,  and  the  third  delivered 
to  the  judge  of  the  district  in  which  the  electors  assemble 
to  cast  their  vote. 

Sections  4,  5  and  6  of  the  law  regulate  the  counting 
by  Congress  of  the  electoral  votes  as  reported  by  the 
State. 

The  final  section  (7)  provides  that  the  joint  meeting 
of  the  two  Houses  "  shall  not  be  dissolved  until  the  count 
of  electoral  votes  shall  be  completed,  and  the  result  de- 
clared; and  no  recess  shall  be  taken  unless  a  question  shall 
have  arisen  in  regard  to  counting  any  such  votes,  or  other- 
wise under  this  act,  in  which  case  it  shall  be  competent 
for  either  House,  acting  separately,  in  the  manner  here- 
inbefore provided,  to  direct  a  recess  of  each  House,  not 
beyond  the  next  calendar  day,  Sunday  excepted,  at  the 
hour  of  ten  o'clock  in  the  forenoon.  But  if  the  counting 
of  the  electoral  votes  and  the  declaration  of  the  result 
shall  have  not  been  completed  before  the  fifth  calendar 
day  next  after  such  meeting  of  the  two  Houses,  no  further 
or  other  recess  shall  be  taken  by  either  House." 

Presidential  succession 

The  Constitution  provides  that:  "In  case  of  the  removal 
of  the  President  from  office,  or  of  his  death,  resignation, 
or  inability  to  discharge  the  powers  and  duties  of  the  said 
office,  the  same  shall  devolve  on  the  Vice-President  and 
the  Congress  may  by  law  provide  for  the  case  of  removal, 
death,  resignation  or  inability,  both  of  the  President  and 
Vice-President,  declaring  what  officer  shall  then  act  as 


476  PRINCIPLES  OF  CONSTITUTIONAL  LAW 

President,  and  such  officer  shall  act  accordingly,  until  the 
disability  be  removed,  or  a  President  shall  be  elected." 

Act  of  1792 

The  Act  of  March  1,  1792,  relative  to  the  election  of  the 
President  and  Vice-President  also  fixed  the  succession  in 
case  of  the  death,  removal,  resignation,  or  disability  of 
these  officers.  It  declared:  "In  case  of  removal,  death, 
resignation  or  disability  both  of  the  President  and  Vice- 
President  of  the  United  States,  the  President  of  the  Senate 
pro  tempore,  and  in  case  there  shall  be  no  President  of  the 
Senate,  then  the  Speaker  of  the  House  of  Representatives 
for  the  time  being  shall  act  as  President  of  the  United 
States  until  the  disability  be  removed  or  a  President  shall 
be  elected." 

These  sections  of  the  act  of  1792,  though  open  to  both 
constitutional  and  political  objections,  remained  in  force 
until  1886.  By  an  act  passed  that  year  the  President 
pro  tempore  of  the  Senate  or  the  Speaker  of  the  House  no 
longer  appear  in  the  line  of  succession,  their  places  being 
taken  by  heads  of  the  executive  departments  in  a  stated 
order. 

The  Constitution  provides  that  the  President  and  Vice- 
president  shall  hold  office  for  the  term  of  four  years.  The 
proper  length  of  time  and  the  propriety  of  forbidding  re- 
election, were  discussed  in  the  Convention  and  the  four- 
year  period  with  eligibility  to  re-election  finally  agreed 
upon.  Nothing  is  said  in  the  Constitution  as  to  the  num- 
ber of  times  the  same  person  may  be  re-elected  President, 
but,  as  is  well  known,  the  propriety  of  restricting  to  two 
the  number  of  successive  terms  has  become  firmly  rooted 
in  the  American  mind. 


CHAPTER  XLIX 

THE   POWERS   AND   DUTIES   OF   THE   PRESIDENT 

By  §1  of  Art.  II,  it  is  declared  that  "The  executive 
power  shall  be  vested"  in  the  President.  By  §  III  it  is 
required  that  "he  shall  take  care  that  the  laws  are  faith- 
fully executed."  In  ultimate  resort,  then,  all  Federal 
executive  authority  is  in  the  President,  and  upon  him  lies 
the  responsibility  for  seeing  that  the  laws  of  the  United 
States  are  faithfully  executed,  that  is  to  say,  that  the 
armed  and  other  forces  of  the  Nation  are,  if  necessary, 
employed  to  maintain  in  efficient  operation  the  govern- 
ment of  the  United  States  over  such  districts  as  are  under 
its  sovereignty,  and  everywhere  and  under  all  circum- 
stances to  protect  its  officers  in  the  performance  of  their 
duties. 

In  fulfilment  of  the  responsibility  thus  constitutionally 
imposed,  the  President  has,  by  necessary  implication,  the 
power  to  use  all  the  specific  powers  conferred  by  the  Con- 
stitution upon  him.  Chief  of  these  is,  of  course,  his 
authority  as  Commander-in-Chief  of  the  land  and  naval 
forces  of  the  Nation.  He  has  also  authority  in  many  di- 
rections given  him  by  statutes  of  Congress,  with  reference, 
for  example,  to  the  use  of  the  militia,  and  to  giving  orders 
to  subordinate  executive  officials. 

Aside  from  these  express  powers,  and  those  necessarily 
implied  in  them,  the  President  has  no  authority  to  act.1 


1  But  see  In  re  Neagle,  135  U.  S.  1;  10  Sup.  Ct.  Rep.  658;  34  L.  ed. 
55.    In  this  case  the  court  comes  perilously  near  to  holcjing,  if  in 

477 


478  PRINCIPLES  OF  THE  CONSTITUTIONAL 

That  is  to  say,  the  obligation  to  take  care  that  the  laws 
of  the  United  States  are  faithfully  executed,  is  an  obli- 
gation but  confers  in  itself  no  powers.  It  is  an  obligation 
which  is  to  be  fulfilled  by  the  exercise  of  those  powers 
which  the  Constitution  and  Congress  have  seen  fit  to 
confer.  At  the  time  of  the  threatened  resistance  of  the 
people  of  the  Southern  States  to  Federal  law  in  1860, 
President  Buchanan,  under  the  advice  of  his  Attorney- 
General,  held  himself  practically  powerless  because  of  the 
lack  of  statutory  authority  to  take  the  necessary  steps. 
President  Lincoln,  upon  his  assuming  office,  gave  a  broader 
interpretation  to  existing  laws  conferring  authority  upon 
him,  and  Congress  soon  by  statute  further  increased  his 
powers. 

The  president  as  administrative  chief 

The  functions  of  a  chief  executive  of  a  sovereign  State 
are,  generally  speaking,  of  two  kinds — political  and  ad- 
ministrative. In  different  countries,  with  different  gov- 
ernmental forms,  the  emphasis  laid  respectively  upon  each 
of  these  functions  varies.  In  some,  the  powers  and  in- 
fluence of  the  executive  head  are  almost  wholly  political. 
In  others,  as  for  example  Switzerland,  the  political  duties 
of  the  executive  are  so  fully  under  legislative  control  that 
the  chief  importance  is  upon  the  administrative  side. 

In  the  United  States  it  was  undoubtedly  intended  that 
the  President  should  be  little  more  than  a  political  chief; 
that  is  to  say,  one  whose  functions  should,  in  the  main, 
consist  hi  the  performance  of  those  political  duties  which 
are  not  subject  to  judicial  control.  It  is  quite  clear  that 


fajct  it  did  not  actually  hold,  that  the  President  has  inherent  execu- 
tive power;  that  is,  powers  inherent  in  him  as  chief  executive,  and 
not  as  expressly  given  him  by  the  Constitution,  or  implied  from 
the  powers  expressly  given,  or  constitutionally  granted  to  him  by 
Congress. 


LAWS  OF  THE  UNITED  STATES  479 

it  was  intended  that  he  should  not,  except  as  to  these 
political  matters,  be  the  administrative  head  of  the  gov- 
ernment, with  general  power  of  directing  and  controlling 
the  acts  of  subordinate  Federal  administrative  agents. 
The  acts  of  Congress  establishing  the  Department  of 
Foreign  Affairs  (State)  and  of  War,  did  indeed  recognize 
in  the  President  a  general  power  of  control,  but  the  first 
of  these  departments,  it  is  to  be  observed,  is  concerned 
chiefly  with  political  matters,  and  the  second  has  to  deal 
with  the  armed  forces  which  by  the  Constitution  are 
expressly  placed  under  the  control  of  the  President  as 
Commander-in-Chief .  The  act  establishing  the  Treasury 
Department  simply  provided  that  the  Secretary  should 
perform  those  duties  which  he  should  be  directed  to  per- 
form, and  the  language  of  the  act,  as  well  as  the  debates 
in  Congress  at  the  time  of  its  enactment,  show  that  it  was 
intended  that  this  direction  should  come  from  Congress. 
Furthermore,  the  Secretary  is  to  make  his  annual  reports 
not  to  the  President,  but  to  Congress.2  In  similar  manner 
the  Post-Office  Department,  when  first  permanently  or- 
ganized in  1794,  was  not  placed  under  the  control  of  the 
President.  The  act  gives  in  detail  the  duties  of  the  Post- 
master-General and  there  is  no  suggestion  that  in  the  ex- 
ercise of  these  duties  he  is  to  be  under  other  than  con- 
gressional direction. 

The  constitutional  power  of  Congress  thus  to  assume 
direction  of  the  administrative  departments  of  the  Gov- 
ernment received  the  approval  of  the  Supreme  Court  in 
Kendall  v.  United  States.3 

Despite  this  obvious  original  intention  to  confine  the 
duties  of  the  President  mainly  to  the  political  field,  the 
President  has  in  practice  become  the  head  of  the  Federal 


2  Cf.  Goodnow,  American  Administrative  Law,  78. 
3 12  Pet.  524;  9  L.  ed.  1181, 


480  PRINCIPLES  OF  THE  CONSTITUTIONAL 

administrative  system.  This  has  been  due  to  two  causes. 
In  the  first  place  the  President's  power  to  remove  from 
office,  a  power  which  he  may  exercise  at  will,  has  easily 
enabled  him  to  obtain  administrative  action  even  when  he 
has  not  had  legal  power  directly  to  command  it.  This 
was  clearly  shown  in  the  episode  of  the  removal  of  the 
bank  deposits  by  Jackson.  In  the  second  place  the  practi- 
cal necessities ,  of  efficient  government  have  compelled 
Congress  to  place  in  the  President's  hands  powers  of  ad- 
ministrative discretion,  and  have  inclined  the  courts  to 
uphold  his  orders  whenever  it  has  been  possible  to  do  so.4 

Even  where  the  President  has  not  the  power  to  command 
he  has  the  constitutional  right  to  "require  the  opinion, 
in  writing,  of  the  principal  officer  in  each  of  the  executive 
departments,  upon  any  subject  relating  to  the  duties  of 
their  respective  offices." 

Acting  under  his  constitutional  obligation  to  take  care 
that  the  laws  be  faithfully  executed,  the  President  may 
take  such  steps  as  are  necessary  and  the  laws  permit,  to 
compel  the  proper  performance  of  their  respective  duties 
by  Federal  agents  generally.  This  duty  does  not,  how- 
ever, make  the  President  responsible  for  every  act  com- 
mitted by  a  subordinate  administrative  official,  nor,  even 
where  a  duty  is  expressly  laid  upon  him  by  the  Constitu- 
tion or  by  statute,  is  it  necessary,  or  humanly  possible 
for  him,  in  every  case,  to  perform  the  duty  in  person.5 

In  general  the  courts  have  recognized  that  the  Presi- 
dent acts  through  the  chiefs  of  the  Departments  and  that 
their  acts  are,  in  the  view  of  the  law,  his  acts.  In  proper 
cases,  also,  the  acts  of  subordinate  officials  will  be  con- 


4  See  Macy,  Party  Organization  and  Machinery  in  the  United  States; 
Ford,  Rise  and  Growth  of  American  Politics;  Proceedings  of  the  Amer- 
ican Political  Science  Association,  I,  47,  article  by  Prof.  J.  T.  Young, 
"The  Relation  of  the  Executive  to  the  Legislative  Power." 

6  Williams  v.  United  States,  1  How.  290;  11  L.  ed.  135. 


LAW  OF  THE  UNITED  STATES  481 

sidered  as  the  acts  of  a  departmental  head,  and  thus  of  the 
President.6 

Where,  however,  from  the  nature  of  the  case,  or  by  ex- 
press constitutional  or  statutory  declaration,  it  is  evident 
that  the  personal,  individual  judgment  of  the  President 
is  required  to  be  exercised,  the  duty  may  not  be  transferred 
by  the  President  to  anyone  else.7 

The  courts  have  laid  down  the  general  doctrine  that 
where  a  power  of  supervision  and  direction  is  given  to  an 
administrative  superior,  this  power  may  be  exercised  either 
by  way  of  direct  order,  or  by  entertaining  appeals  from 
the  acts  of  subordinates.8 

Generally  speaking,  it  has  been  held  that  no  appeal 
lies  to  the  President  from  the  heads  of  the  great  Depart- 
ments at  Washington.  This  is  upon  the  ground  that  the 
acts  of  these  administrative  chiefs  are  held  to  be  the  acts 
of  the  President.  It  may  be  observed,  however,  that  in 
the  several  States  of  the  Union  the  heads  of  the  administra- 
tive departments  have,  commonly,  no  powers  of  direction, 
and,  therefore,  that  there  is  no  general  right  of  appeal  to 
them. 

Administrative  decentralization  in  the  States 

In  general  it  may  be  said  that  the  administrative  sys- 
tems of  the  States  are  much  less  centralized  than  that  of 
the  United  States.  As  contrasted  with  the  Federal 
system  the  governors  have  no  general  power  of  removal 
of  public  agents  from  office,  nor  are  they  given  supervisory 


6  Wilcox  v.  Jackson,  13  Pet.  498;  10  L.  ed.  264;  Jones  v.  United 
States,  137.U.  S.  202;  11  Sup.  Ct.  Rep.  80;  34  L.  ed.  691. 

7Runkle  v.  United  States,  122  U.  S.  543;  7  Sup.  Ct.  Rep.  1141; 
30  L.  ed.  1167. 

8  Knight  v.  United  States  Land  Assn.,  142  U.  S.  161;  12  Sup.  Ct. 
Rep.  258;  35  L.  ed.  974;  Orchard  v.  Alexander,  157  U.  S.  372;  15 
Sup.  Ct.  Rep.  635;  39  L.  ed.  737, 
31 


482  PRINCIPLES  OF  THE  CONSTITUTIONAL 

or  directory  power  over  the  various  administrative  de- 
partments and  boards  of  the  State  governments.  Fur- 
thermore each  of  these  several  departments  and  boards  is 
thus  not  only  not  integrated  into  a  single  system  under  a 
single  head,  but,  not  infrequently  each  of  them  individu- 
ally exhibits  slight  administrative  integration. 

Increasing  integration  of  Federal  administration 

The  Federal  administrative  system  has  exhibited  a 
steady  increase  in  integration.  In  the  earlier  years  sub- 
ordinate administrative  officials  were  accustomed  to  act 
in  individual  cases  without  feeling  themselves  bound  to 
consult  the  judgment  of  those  higher  in  office,  nor  did  they 
hold  themselves  necessarily  bound  by  directions  from  such 
sources.  The  principle  followed  by  them  was  that  they, 
as  well  as  those  in  higher  position,  derived  their  authority 
by  direct  grant  from  the  Congress  and  were  subject  to 
control  and  direction  only  by  that  body  or  by  the  courts. 
The  necessities  of  efficient  government  have,  however, 
compelled  Congress  to  place  express  powers  of  control  over 
their  subordinates  in  the  hands  of  administrative  chiefs, 
and  have  persuaded  the  courts  to  recognize,  whenever 
possible,  the  existence  of  these  supervisory  powers  even 
where  express  statutory  provision  has  not  been  made  for 
their  exercise.9 

The  power  of  the  President  to  control  the  institution 
and  continuance  of  suits  by  the  Attorney-General  and  his 
assistants  may  seem  to  some  an  improper  one,  but  its 
existence  has  been  recognized  since  the  foundation  of  the 
government. 

Information  to  Congress 

The  constitutional  obligation  that  the  President  "  shall 
from  time  to  time  give  to  the  Congress  information  of  the 

9  Cf.  Goodnow,  American  Administrative  Law,  142, 


LAW  OF  THE  UNITED  STATES  483 

State  of  the  Union,  and  recommend  to  their  consideration 
such  measures  as  he  shall  judge  necessary  and  expedient," 
has,  upon  occasions,  given  rise  to  controversies  between 
Congress  and  the  President  as  to  the  right  of  the  former 
to  compel  the  furnishing  to  it  of  information  as  to  specific 
matters.  As  a  result  of  these  contests  it  is  practically 
established  that  the  President  may  exercise  a  full  dis- 
cretion as  to  what  information  he  will  furnish,  and  what 
he  will  withhold. 

The  President's  control  of  foreign  relations 

In  the  chapter  dealing  with  the  Treaty-making  Power, 
the  extent  of  the  President's  control  of  the  foreign  relations 
of  the  United  States  is  fully  considered. 

The  veto  power  of  the  President 

The  exercise  by  the  President  of  the  veto  power  has 
given  rise  to  very  few  constitutional  questions,  and,  where 
these  have  arisen,  they  have  been  considered,  incidentally, 
elsewhere  in  this  treatise. 

The  President's  pardoning  power 

The  Constitution  provides  that  the  President  "  shall 
have  power  to  grant  reprieves  and  pardons  for  offenses 
against  the  United  States,  except  in  cases  of  impeach- 
ment." 

This  pardoning  power,  like  the  veto  power,  has  given 
rise  to  very  few  constitutional  questions.  It  will  be  seen 
that  the  power  is  limited  to  offenses  against  the  United 
States.  Cases  of  impeachment  are  expressly  excepted 
from  its  reach  and  we  shall  later  consider  whether  it  may 
extend  to  the  remission  of  penalties  imposed  for  civil  con- 
tempts of  court. 

The  effect  of  a  pardon  is  to  obliterate  the  offense,  but 
it  does  not  operate  to  impair  the  rights  of  others,  as  for 


484  PRINCIPLES  OF  CONSTITUTIONAL  LAW 

example,  to  restore  the  offender's  property  which  has  been 
forfeited; 10  nor  does  it  restore  one  ipso  facto  to  a  forfeited 
office.11  Also,  though  the  pardon  takes  away  the  guilt, 
it  does  not  effect  the  fact  of  conviction  of  the  crime,  which 
fact  may  be  later  shown  as  bearing  upon  the  offender's 
character. 

The  power  to  pardon  includes  the  right  to  remit  part 
of  the  penalty  as  well  as  the  whole,  and  in  either  case  may 
be  made  conditional.  The  power  may  be  exercised  at  any 
time  after  the  offense  has  been  committed,  that  is,  either 
before,  during,  or  after  legal  proceedings  for  punishment.12 
General  pardons,  granting  amnesty  to  classes  of  offenders, 
without  naming  them  individually,  may  be  granted. 

The  power  is  a  purely  discretionary  one  in  the  Presi- 
dent, and  therefore  may  not  in  any  way  be  limited  by 
Congress.13 

Though  Congress  has  thus  no  power  to  limit  in  any  way 
the  exercise  of  the  pardoning  power  by  the  President,  it 
may  itself  exercise  that  power  to  a  certain  extent,  if  exer- 
cised prior  to  conviction.  Thus  acts  of  amnesty  have  been 
held  valid.14 

The  power  to  suspend  sentence,  it  has  been  held,  is  by 
the  common-law  inherent  in  the  judicial  power,  and  its 
exercise,  therefore,  would  not  be  in  conflict  with  the  execu- 
tive power  to  grant  reprieves  and  pardons,  even  were  that 
power  considered  exclusive. 

10  Osborn  v.  United  States,  91  U.  S.  474;  23  L.  ed.  388. 

11  Ex  parte  Garland,  4  Wall.  333;  18  L.  ed.  366. 

12  Idem. 

13  Idem. 

14  Brown  v.  Walker,  161  U.  S.  591;  16  Sup.  Ct.  Rep.  644;  40  L.  ed. 
819.    As  to  remission  of  penalties  by  lower  administrative  officers, 
see  Pollock  v.  Bridgeport  Co.,  114  U.  S.  411;  5  Sup.  Ct.  Rep.  881;  29 
L.  ed.  147. 


CHAPTER  L 

THE   APPOINTMENT   AND   REMOVAL   OF   OFFICERS 

Constitutional  provisions 

The  Constitution  provides  that  the  President  "  shall 
nominate,  and  by  and  with  the  advice  and  consent  of  the 
Senate,  shall  appoint  ambassadors,  other  public  ministers 
and  consuls,  judges  of  the  Supreme  Court,  and  all  other 
officers  of  the  United  States,  whose  appointments  are  not 
herein  otherwise  provided  for,  and  which  shall  be  estab- 
lished by  law;  but  the  Congress  may  by  law  vest  the  ap- 
pointment of  such  inferior  officers,  as  they  think  proper, 
in  the  President  alone,  in  the  courts  of  law,  or  in  the  heads 
of  departments." 

It  is  also  provided  that  the  President  "  shall  have  power 
to  fill  all  vacancies  that  may  happen  during  the  recess  of 
the  Senate,  by  granting  commissions  which  shall  expire 
at  the  end  of  their  next  session,"  and  that  he  " shall  com- 
mission all  officers  of  the  United  States." 

"  Officer  "  of  the  United  States  defined 

The  definition  of  the  term  " officer"  of  the  United  States 
has  been  determined  in  United  States  v.  Germaine  l  and 
United  States  v.  Mouat.2  In  the  latter  case  the  court 
say:  "Unless  a  person  in  the  service  of  the  Government, 
therefore,  holds  his  place  by  virtue  of  an  appointment 
by  the  President,  or  of  one  of  the  courts  of  justice  or  heads 
of  departments  authorized  to  make  such  appointment, 

1  99  U.  S.  508;  25  L.  ed.  482. 

2 124  U.  S.  303;  8  Sup.  Ct.  Rep.  505;  31  L.  ed.  463. 

485 


486  PRINCIPLES  OF  THE  CONSTITUTIONAL 

he  is   not,  strictly   speaking,   an   officer  of  the  United 
States."3 

The  Constitution,  it  is  seen,  fixes  absolutely  the  manner 
in  which  certain  officers:  namely,  ambassadors,  other  pub- 
lic ministers  and  consuls,  and  judges  of  the  Supreme  Court, 
shall  be  nominated  and  appointed.  The  Constitution 
itself  provides,  in  other  clauses,  for  the  selection  of  the 
President,  the  Vice-President,  presidential  electors,  Sena- 
tors, members  of  the-  House  of  Representatives,  and  the 
officers  of  the  two  Houses  of  Congress,  In  addition  to> 
these  officers  whose  selection  is  thus  constitutionally 
determined,  it  would  appear  that  all  other  officers  not 
properly  to  be  styled  " inferior"  are  to  be  nominated  by 
the  President  and  appointed  by  and  with  the  consent  of 
the  Senate.  The  appointment  of  all  other  officers  of  the 
United  States,  not  mentioned  within  the  foregoing  classes,, 
is  subject  to  regulation  by  law  of  Congress,  at  least  to> 
the  extent  that  that  body  may  determine  whether  they 
shall  be  appointed  by  the  President  with  the.  approval  of 
the  Senate,  or  by  the  President  alone,  or  by  the  courts  of 
law  or  the  heads  of  the  departments- 
Inferior  officers 

The  Constitution  does  not  define  the  term  "inferior 
officers,"  but  it  would  appear  that  in  this  class  are  in- 
cluded all  officers  subordinate  or  inferior  to  those  officers; 
in  whom  other  appointments  may  be  vested.  The  point 
has  never  been  squarely  passed  upon  by  the  court  since 
Congress  has  never  attempted  to  regulate  the  appoint- 
ment to  any  but  distinctly  subordinate  and  inferior  posi- 
tions. Should  it  attempt  to  determine  by  the  law  the 
appointment  of  heads  of  the  great  departments,  or  of  the 


3  That  members  of  Congress  are  not  "officers"  of  the  United 
States  Government,  see  Burton  v.  United  States,  202  U.  S.  344;  26 
Sup.  Ct.  Rep.  688;  50  L.  ed.  1057. 


LAW  OF  THE  UNITED  STATES  487 

heads  of  bureaus  and  divisions  and  commissions,  or  even 
of  important  local  officers,  such  as  revenue  officers  or 
postmasters  in  the  larger  cities,  the  constitutionality  of 
the  law  would  undoubtedly  be  subjected  to  judicial  ex- 
amination. 

Nominations 

With  reference  to  the  President's  power  of  appointment 
it  is  to  be  observed  that  nominating,  appointing,  and  com- 
missioning to  office  are  distinct  acts. 

The  nomination  is  exclusively  in  the  hands  of  the  Presi- 
dent. During  the  first  years  of  the  Government  the  sug- 
gestion was  several  times  made  that  the  Senate  might 
propose  names  for  nomination  to  the  President;  but,  when- 
ever made,  the  suggestion  was  disapproved  of  as  clearly 
not  warranted  by  the  Constitution.  An  appointment  to 
office  is  not  completed  until  the  commission  is  signed. 
Therefore,  even  after  sending  a  nomination  to  the  Senate 
and  even  after  the  approval  of  that  body  has  been  given, 
the  President  may,  having  changed  his  mind,  refuse  his 
signature  to  a  commission.  His  signature  having  once 
been  appended,  however,  the  appointment  is  complete, 
and  the  delivery  of  the  commission  by  the  head  of  the 
appropriate  executive  department  may  be  commanded  by 
mandamus,  provided,  of  course,  a  Federal  court  has,  by 
statute,  been  granted  jurisdiction  to  issue  the  writ.4 

Creation  of  offices 

All  offices  are  created  either  by  the  Constitution  itself, 
or  by  Congress.  The  President,  therefore,  has  not  the 
power  to  create  an  office  by  directing  some  person  to  per- 
form certain  functions.  However,  the  President  as  well 
as  other  executive  officials  may,  for  their  assistance  in  exe- 
cuting their  official  duties,  employ  persons  to  perform  cer- 

4  Marbury  v.  Madison,  1  Cr.  137;  2  L.  ed.  60. 


488  PRINCIPLES  OF  THE  CONSTITUTIONAL 

tain  specific  duties.  These  persons  have,  however,  legally 
speaking,  no  official  powers,  that  is,  they  have  no  author- 
ity to  issue  orders  to  others,  and  for  compensation  for  their 
services  they  must  look  either  to  contingent  funds,  the 
expenditure  of  which  is  placed  in  the  discretion  of  the  de- 
partment employing  them,  or  to  a  subsequent  appropri- 
ation by  Congress. 

Congress  has  no  appointing  power,  beyond  the  selection 
of  its  own  officers.  *  It  may  create  an  office  but  not  desig- 
nate the  one  to  fill  it.5 

It  has  been  held  that  Congress  may  authorize  a  particu- 
lar person  or  official  to  perform  a  specific  act,  though  it 
may  not  create  an  "  office  "  for  that  person,  in  the  sense 
that  he  is  made  an  officer  of  the  United  States  or  entitled 
to  any  emolument  or  profit.6 

The  Congress  may  not  vest  the  appointment  of  officers 
elsewhere  than  as  permitted  by  the  Constitution,  that  is, 
elsewhere  than  in  the  President  alone,  the  President  and 
the  Senate  or  the  heads  of  departments.7 

Civil  Service  requirements 

The  question  has  been  at  times  raised  as  to  the  constitu- 
tional power  of  Congress,  while  providing  for  the  appoint- 
ment of  officials  by  the  President,  or  by  the  heads  of  the 
departments,  to  require  that  the  appointees  shall  be  se- 
lected from  certain  classes  or  persons,  namely,  those  who 
have  satisfied  specified  educational  and  other  tests  applied 
by  the  Civil  Service  Commission.  Though  the  courts  have 
never  had  occasion  to  pass  upon  this  point,  the  constitu- 


5  United  States  v.  Ferreira,  13  How.  40;  14  L.  ed.  42.     But  see 
Shoemaker  v.  United  States,  147  U.  S.  282;  13  Sup.  Ct.  Rep.  361;  37 
L.  ed.  170. 

6  Kentucky  v.  Dennison,  24  How.  66;  16  L.  ed.  717. 

7  Ekiu  v.  United  States,  142  U.  S.  651;  12  Sup.  Ct.  Rep.  336;  35 
L.  ed.  1146. 


LAW  OF  THE  UNITED  STATES  489 

tionality  of  the  provision  would  seem  to  be  fairly  certain. 
The  same  sort  of  rules  have  long  been  established  and  fol- 
lowed with  reference  to  appointments  in  the  army  and 
navy,  and  the  decisions  of  the  State  courts  support  the 
practice  as  to  the  appointment  of  State  officials. 

The  power  of  removal 

Though  the  Supreme  Court  has  never  had  occasion  to 
pass  squarely  upon  the  point,  executive  practice,  and, 
with  the  exception  of  the  tenure  of  office  acts  of  1867  and 
1869,  Congressional  enactment,  have  sanctioned  the  view 
that  the  power  to  remove  from  Federal  office  is  constitu- 
tionally inherent  in  the  President  as  to  all  offices  to  which 
he  alone,  or  in  conjunction  with  the  Senate,  appoints.8 

Congress  may  regulate  the  removal  of  inferior  officers 

In  United  States  v.  Perkins  9  it  was  held  that  when  Con- 
gress by  law  vests  the  appointment  of  inferior  officers  in 
the  heads  of  departments,  it  may  at  the  same  time  limit 
and  restrict  the  power  of  removal. 

Injunctions  to  prevent  removal 

In  White  v.  Berry  10  it  was  held  that,  at  least  in  the  ab- 
sence of  express  statutory  authorization,  the  courts  will 
not  grant  a  writ  of  injunction  to  prevent  the  removal  of 
an  officer  from  the  classified  service,  even  though  such  re- 
moval be  in  violation  of  the  rules  governing  that  service, 
as  laid  down  by  the  Civil  Service  Act  and  as  embodied 
in  an  executive  order  issued  in  pursuance  thereof.  In 


8  Parsons  v.  United  States,  167  U.  S.  324;  17  Sup.  Ct.  Rep.  880; 
42  L.  ed.  185;  Ex  parte  Hennen,  13  Pet.  230;  10  L.  ed.  138;  Reagan 
v.  United  States,  182  U.  S.  419;  21  Sup.  Ct.  Rep.  842;  45  L.  ed.  1162; 
Shurtleff  v.  United  States,  189  U.  S.  311;  23  Sup.  Ct.  Rep.  535;  47 
L.  ed.  828. 

9 116  U.  S.  483;  6  Sup.  Ct.  Rep.  449;  29  L.  ed.  700. 

10 171  U.  S.  366;  18  Sup.  Ct.  Rep.  917;  43  L.  ed.  199. 


490  PRINCIPLES  OF  CONSTITUTIONAL  LAW 

general,  it  is  held  that  in  the  general  executive  power 
of  the  President  is  implied  a  power  of  removal  from  office, 
and  that  under  this  general  power  he  may  issue  rules  for 
the  government  of  the  executive  departments  with  refer- 
ence to  removals,  but  that  these  rules  are  not  imposed 
upon  the  President  by  law  or  by  the  Constitution,  and 
that,  therefore,  if  they  be  violated  by  the  executive  chiefs, 
with  the  President's  approval,  the  person  so  deprived  of 
office  has  no  legal  right  to  be  reinstated. 

Mandamus  to  reinstate  in  office 

In  Keim  v.  United  States  n  it  was  held  that  the  action 
of  the  Secretary  of  the  Interior  in  discharging  a  clerk  in 
his  department  for  incompetency  was  not  subject  to  re- 
view in  the  courts  either  by  mandamus  to  reinstate  him  or 
by  compelling  the  payment  to  him  of  his  salary. 

11 177  U.  S.  290;  20  Sup.  Ct.  Rep.  574;  44  L.  ed.  774. 


CHAPTER  LI 

MILITARY   LAW 

Military  powers  of  the  General  Government 

Under  the  Articles  of  Confederation  the  General  Govern- 
ment had  not  been  granted  adequate  military  authority. 
To  it  had  been  conceded  by  the  States  the  power  to  "build 
and  equip  a  navy."  But  for  its  land  forces  it  was  obliged 
to  rely  wholly  upon  requisitions  made  upon  the  States, 
each  State  being  pledged  to  supply  a  quota  in  proportion 
to  the  number  of  its  white  inhabitants.  The  regimental 
officers  of  these  forces  were  appointed  by  the  States,  only 
the  general  officers  being  appointees  of  the  General 
Government.  From  these  quotas  the  national  forces 
were  supplied.  Over  the  militia  bodies  of  the  several 
States,  the  General  Government  was  given  no  control 
whatever. 

Under  the  present  Constitution  the  Federal  Government 
is  given  full  power  for  the  organization  and  maintenance 
of  both  the  naval  and  land  forces  of  its  own,  and  a  con- 
siderable authority  over  the  State  militia  forces.  The 
constitutional  clauses  in  which  these  powers  are  granted 
are  as  follows: 

"The  Congress  shall  have  power  to  raise  and  support 
armies,  but  no  appropriation  of  money  to  that  use  shall 
be  for  a  longer  term  than  two  years ; 

"To  provide  and  maintain  a  navy; 

"To  make  rules  for  the  government  and  regulation  of 
the  land  and  naval  forces; 

"To  provide  for  calling  forth  the  militia  to  execute  the 

491 


492  PRINCIPLES  OF  THE  CONSTITUTIONAL 

laws  of  the  Union,  suppress  insurrections  and  repel  in- 
vasions; 

"To  provide  for  organizing,  arming,  and  disciplining 
the  militia,  and  for  governing  such  part  of  them  as  may 
be  employed  in  the  service  of  the  United  States,  reserving 
to  the  States  respectively  the  appointment  of  the  officers, 
and  the  authority  of  training  the  militia  according  to  the 
discipline  prescribed  by  Congress."  The  second  article 
of  amendment  provides  that  "A  well-regulated  militia, 
being  necessary  to  the  security  of  a  free  State,  the  right 
of  the  people  to  keep  and  bear  arms  shall  not  be  in- 
fringed." 

Other  clauses  of  the  Constitution  give  to  the  United 
States  the  power  to  exercise  exclusive  authority  "over  all 
places  purchased  by  the  consent  of  the  legislature  of  the 
State  in  which  the  same  shall  be,  for  the  erection  of  forts, 
magazines,  arsenals,  dockyards,  and  other  needful  build- 
ings;" "To  declare  war,  grant  letters  of  marque  and  re- 
prisal, and  make  rules  concerning  captures  on  land  and 
water;"  and  "To  define  and  punish  piracies  and  felonies 
committed  on  the  high  seas,  and  offenses  against  the  law 
of  nations." 

There  is  thus  apparent  the  purpose  to  equip  the  Na- 
tional Government  with  adequate  military  authority  to 
maintain  itself  against  enemies  both  domestic  and  foreign. 
Upon  the  other  hand,  while  the  States  are  not  deprived 
of  military  authority  necessary  to  maintain  domestic 
order  or  to  protect  themselves  against  invasion,  the  main-* 
taining  of  armed  forces  for  any  other  purpose,  or  the  en- 
gaging in  foreign  war,  or  entering  into  alliances  that  may 
lead  to  war,  is  forbidden.  By  Clause  3  of  §  X  of  Art.  I 
is  declared:  "No  State  shall,  without  the  consent  of  Con- 
gress, lay  any  duty  of  tonnage,  keep  any  ships-of-war  in 
time  of  peace,  enter  into  any  agreement  or  compact  with 
another  State,  or  with  a  foreign  power,  or  engage  in  war, 


LAW  OF  THE  UNITED  STATES  493 

unless  actually  invaded,  or  in  such  imminent  danger  as 
will  not  admit  of  delay." 

Section  IV  of  Art.  IV  declares  that  "The  United  States 
shall  guarantee  to  every  State  in  this  Union  a  republican 
form  of  government,  and  shall  protect  each  of  them  against 
invasion,  and  on  application  of  the  legislature  or  the  exec- 
utive (when  the  legislature  cannot  be  convened)  against 
domestic  violence." 

Military  law— Reference  to  members  of  the  army  and  navy 

The  Constitution  provides,  as  has  been  seen,  that  Con- 
gress shall  have  the  power  to  provide  and  to  make  rules 
for  the  government  and  regulation  of  the  land  and  naval 
forces.  It  has  also  provided  that  the  President  "  shall  be 
Commander-in-Chief  of  the  Army  and  Navy  of  the  United 
States,  and  of  the  militia  of  the  several  States,  when 
called  into  the  actual  service  of  the  United  States." 

Under  these  grants  of  power  Congress  has  established 
an  army  and  navy,  and  by  laws,  passed  from  time  to  time, 
has  provided  the  rules  by  which  the  respective  powers  and 
duties  of  the  officers  and  men  constituting  this  military 
establishment  are  to  be  determined  and  exercised.  Col- 
lectively these  rules  are  known  as  the  Military  Laws  of  the 
United  States. 

Articles  of  war 

The  chief  of  these  military  laws,  so  far  as  they  relate 
directly  to  the  duties  and  obligations  of  the  individual 
soldier,  are  embodied  in  the  so-called  Articles  of  War, 
which  constitute  sections  1342  and  1343  of  the  Revised 
Statutes. 

With  the  details  of  this  considerable  body  of  statutory 
law  we  are  not  here  concerned.  With  its  general  charac- 
ter, and  especially  with  its  relations  to  the  civil  portions 
of  the  law  of  the  land,  we  are,  however,  interested. 


494  PRINCIPLES  OF  THE  CONSTITUTIONAL 

Obligations  assumed  by  enlistment 

By  enrollment  in  the  military  forces  of  the  United  States, 
the  individual  assumes  new  obligations,  and  is  subjected 
to  certain  forms  of  control  to  which  he  was  not  before  sub- 
ject. But  he  does  not  lose  his  right  to  the  protection  of 
the  civil  and  criminal  law,  nor  is  he  released  from  any  of 
his  obligations  thereunder.  Thus  the  enlisted  soldier 
comes  under  an  obligation  to  obey  all  the  provisions  of  the 
military  code,  and  for  the  violation  of  any  one  of  them  is 
subject  to  trial  before  a  military  court,  a  court-martial, 
and,  upon  conviction,  to  punishment  ranging  in  severity 
from  a  small  fine  or  short  imprisonment  to  loss  of  life. 
In  cases  of  urgency,  which  do  not  admit  of  delay,  he  may 
be  summarily  punished  by  order  of  his  superiors,  without 
even  a  court-martial  being  convened.  Furthermore,  if  the 
act  for  which  he  is  tried,  convicted  and  punished  by  the 
military  authorities,  is  also  an  offense  against  the  gen- 
eral law  of  the  State  in  which  he  is,  he  may  be  tried,  con- 
victed and  punished  by  the  civil  authorities  of  that  State. 
Still  further,  as  we  shall  see,  if,  in  the  justification  of  his 
act,  he  sets  up  the  command  of  his  military  superior,  it 
must  appear  that  that  order  was  one  which  that  officer 
had  authority  to  give.  Thus  the  soldier  may  at  times  find 
himself  in  the  dilemma  that  if  he  refuse  to  obey  the  order 
of  his  military  superior,  he  will  receive  immediate  military 
punishment;  whereas,  if  he  obey  it,  he  will  later  be  held 
civilly  and  criminally  liable  in  the  ordinary  courts.  This 
dilemma,  though  easily  conceivable,  is  not,  in  fact,  often 
a  serious  one,  for  the  soldier  will  not  be  held  civilly  and 
criminally  responsible  except  in  cases  where  he  has  grounds 
for  knowing  that  the  act  ordered  to  be  committed  was  not 
a  proper  one  and  not  within  the  official  power  of  his  su- 
perior to  command. 

But,  just  as  the  individual  soldier  is  still  answerable  in 
all  respects  to  the  non-military  law  of  the  State,  so  are  his 


LAW  OF  THE  UNITED  STATES  495 

superiors  when  giving  commands,  as  are  also  the  members 
of  courts-martial  and  of  other  military  tribunals,  when  try- 
ing him,  and  the  persons  by  whom  the  orders  of  such  tribun- 
als are  carried  into  effect;  and  if  any  act  is  by  them  ordered 
or  committed  which  is  not  warranted  by  the  law  of  the 
land,  they  may  be  held  civilly  and  criminally  responsible 
by  the  ordinary  courts.  Not  even  the  order  of  the  Presi- 
dent himself,  the  constitutional  commander-in-chief  of  the 
army  and  navy,  if  that  order  be  without  authority  of  law, 
is  sufficient  to  justify  the  performance  of  the  act  com- 
manded.1 

In  time  of  war,  as  we  shall  see,  the  powers  of  the  military 
commander,  in  the  control  of  his  own  men,  and  of  the  citi- 
zens of  the  State  to  which  he  belongs,  are  much  broader 
than  they  are  in  time  of  peace,  but  it  is  still  true  that  they 
are  subject  to  the  limitations  which  the  civil  law  imposes. 
With  respect  to  the  persons  and  property  of  the  enemy, 
however,  he  is  subject  only  to  the  limitations  which  the 
laws  of  war,  as  determined  by  international  usage,  supply, 
and  for  violation  of  these  he  is  responsible  only  to  the  mili- 
tary tribunals. 

Courts-martial 

The  tribunals  in  which  those  who  violate  the  military 
laws  are  tried  (except  where  urgency  demands  a  more 
summary  method)  are  termed  courts-martial. 

These  tribunals  are  presided  over  by  military  officers 
detailed  for  the  purpose.  No  provision  is  made  either 
for  presentment  or  indictment  by  jury.  The  constitu- 
tionality of  this  is  expressly  provided  for  by  the  Fifth 
Amendment  to  the  Constitution  which  declares  that  "no 
person  shall  be  held  to  answer  for  a  capital  or  otherwise 
infamous  crime,  unless  on  presentment  or  indictment  of  a 


1  Little  v.  Barreme,  2  Cr.  170;  2  L.  ed.  243. 


496  PRINCIPLES  OF  THE  CONSTITUTIONAL 

grand  jury,  except  in  cases  arising  in  the  land  or  naval 
forces,  or  in  the  militia  when  in  actual  service  in  time  of 
war  or  public  danger."  There  is  no  constitutional  neces- 
sity for  a  trial  jury  in  courts-martial.  These  tribunals 
are  not  parts  of  the  judicial  organization  of  the  United 
States.  According  to  English  practice  juries  were  never 
required  in  them,  and  it  has  never  been  questioned  that 
they  are  not  required  by  the  Sixth  Amendment. 

The  decisions  of  courts-martial  acting  within  their 
jurisdiction  both  as  to  the  parties  and  the  subject-matter 
are  not  subject  to  review  by  the  civil  courts.  In 
assuming  jurisdiction,  however,  they,  in  a  sense,  act  at 
their  peril,  for  their  authority  may  be  examined  into  by 
the  civil  courts,  and  if  no  jurisdiction  is  found,  all  acts 
committed  by  them  are  trespasses,  punishment  and  dam- 
ages for  which  the  civil  courts  will  award  and  the  execu- 
tive officers  enforce. 

In  Tarble's  case,  decided  in  1872,  was  examined  the 
right  of  a  State  court  to  inquire  by  writ  of  habeas  corpus 
whether  an  individual  is  a  member  of  the  United  States 
army  or  navy,  and,  therefore,  subject,  as  such,  to  Federal 
military  law.  The  court  denies  this  right,  and  asserts  that 
this  is  a  question  exclusively  for  the  Federal  civil  courts 
to  determine.2 

Jurisdiction  of  courts-martial  over  offenses  which  are  also 
violations  of  the  local  civil  law 

In  Coleman  v.  Tennessee  3  the  court  says:  "  We  do  not 
call  in  question  the  correctness  of  the  general  doctrine  .  .  . 
that  the  same  act  may,  in  some  instances,  be  an  offense 
against  two  governments,  and  that  the  transgressor  may 
be  held  liable  to  punishment  by  both  when  the  punish- 
ment is  of  such  a  character  that  it  can  be  twice  inflicted, 

2 13  Wall.  397;  20  L.  ed.  597. 
397U.  S.  509;  24  L.  ed.  1118. 


LAW  OF  THE  UNITED  STATES  497 

or  by  either  of  the  two  governments  if  the  punishment, 
from  its  nature,  can  be  only  once  suffered.  It  may  well 
be  that  the  satisfaction  that  the  transgressor  makes  for 
the  violated  law  of  the  United  States  is  no  atonement  for 
the  violated  law  of  Tennessee." 

It  is  clear  that  there  is  here  opportunity  for  conflict 
between  the  military  and  civil  powers.  Congress,  how- 
ever, has  provided  against  these  contingencies  by  giving 
the  precedence  in  such  cases  to  the  civil  courts. 

The  power  of  Congress  to  vest  in  military  tribunals  exclusive 
jurisdiction  over  all  offenses  committed  by  military 
persons,  including  offenses  which  are  also  crimes  against 
the  civil  law 

There  is  an  obiter  dictum  upon  this  point  in  Coleman  v. 
Tennessee.  The  point  directly  decided  in  that  case  was 
that  a  certain  §  (30)  of  the  Enrollment  Act  had  not,  as  a 
matter  of  fact,  made  the  jurisdiction  of  the  military  tri- 
bunals over  certain  offenses  committed  by  soldiers  in  the 
army  exclusive  of  the  State  courts.  But  after  deciding 
this  in  the  negative  the  court  add:  "We  do  not  mean  to 
intimate  that  it  was  not  within  the  competence  of  Congress 
to  confer  exclusive  jurisdiction  upon  military  courts  over 
offenses  committed  by  persons  in  the  military  service  of 
the  United  States." 

Whether  or  not,  however,  Congress  has  the  constitu- 
tional power,  except  in  time  of  war,  to  render  the  juris- 
diction of  military  tribunals  exclusive,  as  was  suggested 
in  Coleman  v.  Tennessee,  would  seem  to  be  more  doubt- 
ful; and  when,  if  ever,  that  question  is  squarely  presented 
to  the  Supreme  Court,  that  tribunal  may  consider  more 
carefully  the  possibility  of  the  exaltation  of  the  military 
over  the  civil  authorities  implicit  in  its  dictum  in  the  Cole- 
man case. 

In  time  of  war,  and  especially  upon  the  actual  theatre 
of  war,  military  courts  have,  without  express  legislative 
32 


498  PRINCIPLES  OF  THE  CONSTITUTIONAL 

authorization,   exclusive  jurisdiction  over  the  members 
of  the  military  forces.4 

Powers  of  the  Commander-in-Chief  of  the  army  and  navy 

The  constitutional  Commander-in-Chief  of  the  army 
and  navy  of  the  United  States,  and  of  the  militia  of  the 
several  States,  when  called  into  the  service  of  the  United 
States,  is  the  President.5  Through,  or  under,  his  orders, 
therefore,  all  military  operations  in  times  of  peace,  as 
well  as  of  war,  are  conducted.  He  has  within  his  control 
the  disposition  of  troops,  the  direction  of  vessels  of  war  and 
the  planning  and  execution  of  campaigns.  With  Congress, 
however,  lies  the  authority  to  lay  down  rules  governing 
the  organization  and  maintenance  of  the  military  forces, 
the  determination  of  their  number,  the  fixing  of  the  man- 
ner in  which  they  shall  be  armed  and  equipped,  the  estab- 
lishment of  forts,  hospitals,  arsenals,  etc.,  and  of  course, 
the  voting  of  appropriations  for  all  military  purposes.6 

With  respect  to  many  matters  of  detail  Congress  has 
delegated  to  the  President  and  to  his  executive  subordin- 
ates the  promulgation  of  administrative  orders  for  the 
government  of  the  land  and  naval  forces  which  it  might 
constitutionally  itself  provide,  but  which  in  fact  it  is 
either  impossible  or  unwise  for  it  to  attempt  to  do.  All 
orders  of  the  President,  or  of  the  Secretary  of  War  issued 
under  his  authority  whether  given  by  virtue  of  his  con- 
stitutional office  as  commander-in-chief  or  of  his  statutory 
powers  have  the  full  force  of  law.7  But  in  all  cases  these 
orders  must,  if  issued  by  virtue  of  authority  congressionally 
given,  pursue  the  terms  of  the  granting  statute;  and  if 
issued  by  virtue  of  his  constitutional  authority,  be  in 

4  Coleman  v.  Tennessee,  97  U.  S.  509;  24  L.  ed.  1118. 

5  Const.,  Art.  II,  §  2,  cl.  1. 

•     6  Ex  parte  Milligan,  4  Wall.  2;  18  L.  ed.  281. 

7  Smith  v.  Whitney,  116  U.  S.  167;  6  Sup.  Ct.  Rep.  570;  29  L.  ed. 
601. 


LAW  OF  THE  UNITED  STATES  499 

accordance  with  the  generally  accepted  principles  of  in- 
ternational law  and  custom.  Where  this  is  not  done,  they 
will  not  justify  the  acts  of  subordinates  acting  under  them, 

.Declaration  of  war 

To  Congress  is  expressly  granted  by  the  Constitution 
the  power  to  declare  war.  By  war  is  meant  an  armed 
conflict  of  a  public  nature,  the  parties  to  which  are  recog- 
nized as  belligerents  and  as  entitled  to  all  the  rights  and 
subject  to  all  the  obligations  which  international  law  recog- 
nizes and  imposes. 

But  war  may  come  into  existence  as  a  fact  without  a 
formal  declaration,  and  in  the  Prize  Cases 8  the  Supreme 
Court  has  held  that  this  existence  of  war  as  a  fact  may  be 
recognized  by  the  President,  in  advance  of  Congressional 
declaration,  and  that  he  may  thereupon  take  action,  as, 
for  example,  the  establishment  of  a  blockade,  which  in 
time  of  peace  he  would  not  be  constitutionally  empowered 
to  institute. 

That  no  war  can  exist  between  the  United  States  and  a 
foreign  State,  except  by  the  declaration  of  Congress  there 
has  never  been  any  doubt.  This  declaration  may,  how- 
ever, be,  as  in  the  case  of  the  Mexican  War,  that  a  State 
of  war  exists,  or  one  declaring  that  war  shall  be  begun. 
The  terms  of  such  a  declaration  fix  the  exact  date  of  the 
beginning  of  the  war  so  far  as  concerns  matters  of  municipal 
law,  and  is  binding  on  the  courts  of  the  State  issuing  it. 
From  the  viewpoint,  however,  of  other  nations,  such  a 
declaration  is  not  conclusive,  the  beginning  of  the  war 
being  a  question  of  fact  to  be  interpreted  in  the  light  of 
the  general  principles  of  international  law. 

The  prosecution  of  war 
The  constitutional  power  given  to  the  United  States 

8  2  Black,  635;  17  L.  ed.  459. 


500  PRINCIPLES  OF  THE  CONSTITUTIONAL 

to  declare  and  wage  war,  whether  foreign  or  civil,  carries 
with  it  the  authority  to  use  all  means  calculated  to  weaken 
the  enemy  and  bring  the  struggle  to  a  successful  conclu- 
sion, When  dealing  with  the  enemy  all  acts  that  are 
calculated  to  advance  this  end  are  legal,  and  Congress 
may  by  law  expressly  authorize  measures  which  the  courts 
must  recognize  as  valid  even  though  they  provide  penalties 
not  supported  by  the  general  usage  of  nations  in  the  con- 
duct of  war.  Thus  during  the  Civil  War  in  certain  cases 
provision  was  made  by  congressional  statute  for  the  con- 
fiscation of  certain  enemy  property  or  land,  though  such 
confiscation  was  not  in  accordance  with  the  general  usage 
of  foreign  States. 

Even  in  dealing  with  its  own  loyal  subjects,  the  power 
to  wage  war  enables  the  government  to  override  in  many 
particulars  private  rights  which  in  time  of  peace  are  in- 
violable. 

The  power  to  wage  war  carries  with  it  the  authority 
not  only  to  bring  it  to  a  full  conclusion,  but,  after  the  ces- 
sation of  active  military  operations,  to  take  measures 
to  provide  against  its  renewal.9 

The  organization  and  disciplining  of  the  militia 

As  has  been  seen,  the  "organizing,  arming  and  disciplin- 
ing of  the  militia,"  and  the  prescribing  of  the  discipline 
for  training  them  are  expressly  placed  within  the  control 
of  Congress.  The  actual  training,  however,  of  the  militia, 
according  to  the  discipline  thus  to  be  supplied  by  Con- 
gress, is  kept  within  the  hands  of  the  State  authorities. 
And,  furthermore,  to  them  is  given  in  general  the  ap- 
pointment of  militia  officers,  and  the  entire  government 
of  the  militia  forces  except  when  they  have  been  called 
into  the  service  of  the  General  Government. 

The  present  Federal  law  passed  under  the  constitutional 

9  Stewart  v.  Kahn,  11  Wall.  493;  20  L.  ed.  176. 


LAW  OF  THE  UNITED  STATES  501 

authority  for  "organizing,  arming  and  disciplining  the 
militia  and  for  governing  such  part  of  them  as  may  be 
employed  in  the  service  of  the  United  States/'  is  that  of 
May  27,  1908,  amending  the  act  of  January  21,  1903. 

The  militia  as  an  arm  of  the  Federal  Government 

The  Constitution  enumerates  three  purposes  for  aid 
in  the  effectuation  of  which  the  United  States  militia  forces 
may  be  peremptorily  called  upon  by  the  General  Govern- 
ment. These  are  (1)  to  execute  the  laws  of  the  Union, 
(2)  to  suppress  insurrections,  (3)  to  repel  invasions. 

The  suppression  of  insurrections  has  been  held  to  in- 
clude the  waging  of  civil  war  for  the  putting  down  of  re- 
bellion,10 and  the  repelling  of  invasions  to  include  the  pro- 
viding against  an  attempted  or  threatened  invasion.11 
The  President  may,  when  calling  upon  the  militia,  apply 
to  the  governors  of  the  States  to  give  the  necessary  orders, 
or  may  issue  his  orders  directly  to  the  commanding  officers 
of  the  militia.12  When  called  into  the  Federal  service, 
the  militia  comes  under  the  same  complete  Federal  con- 
trol as  the  regular  national  forces,  and  of  course  subject 
to  the  rules  and  articles  of  war. 

In  Martin  v.  Mott 13  the  doctrine  was  declared,  which 
has  not  since  been  questioned,  that  the  President  is, 
by  statute,  sole  judge  as  to  whether  an  exigency  has 
arisen  calling  for  the  use  of  the  militia  by  the  Federal 
authorities. 

The  use  of  the  militia  and  Federal  troops  to  suppress  do- 
mestic disorder 

From  the  foregoing  it  is  seen  that  in  all  cases  in  which 
the  integrity  or  existence  of  the  National  Government  is 

10  Texas  v.  White,  7  Wall.  700;  19  L.  ed.  227. 

11  Martin  v.  Mott,  12  Wh.  19;  6  L.  ed.  537. 

12  Houston  v.  Moore,  5  Wh.  1;  5  L.  ed.  19. 
13 12  Wh.  19;  6  L.  ed.  537. 


502  PRINCIPLES  OF  THE  CONSTITUTIONAL 

attacked  or  threatened,  or  a  resistance  offered  to  the  exe- 
cution of  its  laws  too  great  to  be  overcome  by  the  ordi- 
nary agencies  of  government,  the  aid  of  the  Federal  troops 
or  of  the  organized  militia  of  the  States  may  be  at  once 
called  upon.  In  cases,  however,  of  domestic  violence 
within  a  State,  directed  against  its  laws  and  government, 
the  Federal  arm  may  extend  help  only  when  called  upon 
by  the  State  authorities.14 

Military  government 

In  a  previous  chapter  the  special  administrative  law 
governing  persons  in  the  military  service  of  the  United 
States  has  been  considered.  We  have  now  to  speak  of 
the  law  regulating  the  conduct  of  the  national  armed 
forces  in  the  possession  and  government  of  particular 
territories. 

As  will  later  appear,  military  government  may  con- 
stitutionally exist  either  in  time  of  peace  or  of  war,  and 
over  domestic  as  well  as  over  foreign  territory. 

Military  government  of  foreign  territory 

Military  government  of  foreign  territory  by  the  armed 
forces  of  the  United  States  may  exist  either  as  the  result 
of  hostile  occupation  in  time  of  war,  or  by  friendly  inter- 
national agreement,  in  time  of  peace.  An  instance  of 
this  last  was  the  military  occupation  and  administration 
of  Cuba  by  the  United  States.  The  constitutional  author- 
ity for  thus  employing  our  troops  in  foreign  territory  was 
derived  not  from  the  war  powers  of  the  President  acting  as 
the  commander-in-chief  of  the  army  and  navy,  for  there 
was  no  existing  war,  but  from  the  general  powers  of  the 
United  States  as  a  sovereign  State  in  all  that  relates  to 
international  relations. 

The  law  of  military  occupation  of  foreign  territory  is 
that  established  by  general  international  law.  According 

14  In  re  Debs,  158  U  S.  564;  15  Sup.  Ct.  Rep.  900;  39  L.  ed.  1092. 


LAW  OF  THE  UNITED  STATES  503 

to  this,  the  power  of  the  military  commander  is  constitu- 
tionally supreme.  For  no  act  that  he  or  his  subordinates 
may  commit  can  he  or  they  be  held  civilly  liable  in  the 
civil  courts  of  the  United  States  or  of  the  State  whose 
territory  is  occupied.  The  only  limits  to  the  military 
authority  are  those  which  international  law  and  usage, 
upon  the  ground  of  humanity  and  justice,  impose,  and 
breaches  of  these  are  cognizable  only  in  the  military 
courts.15 

During  military  occupation  of  foreign  territory,  though 
there  is  no  obligation  by  either  constitutional  or  inter- 
national law,  to  establish  courts  or  to  permit  the  continued 
operation  of  local  courts  for  the  trial  of  ordinary  civil  and 
criminal  cases  according  to  local  law,  there  is  nothing  to 
prevent  this  being  done,  and  in  fact,  in  modern  times, 
this  is  usually  done.  Indeed,  the  principle  is  now  well 
established  that,  until  expressly  declared  otherwise,  local 
law  and  the  tribunals  for  its  administration,  continue  in 
operation.  But  in  all  such  cases,  the  courts,  whether 
established  or  allowed  to  continue,  exist  essentially  as 
military  courts,  and  the  law  which  they  enforce  has  validity 
only  by  military  order  and  permission.  For  the  first  effect 
of  military  occupation  is  to  sever,  for  the  time  being,  all 
the  former  political  relations  of  the  inhabitants  of  the  terri- 
tory and  to  destroy  the  de  jure  character  of  the  former 
organs  of  government.* 

In  practically  all  respects  the  laws  governing  the  military 
occupation  of  foreign  hostile  territory  apply  to  the  military 
occupation  of  hostile  domestic  territory  in  time  of  a  civil 
war  which  has  assumed  a  public  character. 

The  fact  that  the  sovereign  State  continues  to  claim 
sovereignty  and  to  exercise  powers  as  such  does  not  pre- 


15  New  Orleans  v.  N.  Y.  Mail  Steamship  Co.,  20  Wall.  387;  22 
L.  ed.  354. 


504  PRINCIPLES  OF  THE  CONSTITUTIONAL 

vent  it  from  exercising  at  the  same  time  all  the  rights  of  a 
belligerent.  This  was  conclusively  determined  in  the 
Prize  Cases.  In  that  case,  as  will  be  remembered,  it  was 
held  that  there  lies  within  the  discretion  of  the  President 
as  commander-in-chief  of  the  army,  a  discretion  not  re- 
viewable  by  the  courts,  to  determine  when  an  insurrection 
or  civil  war  has  assumed  such  proportions  as  to  warrant 
him  in  declaring  it  to  be  public  war,  and  the  insurrec- 
tionists belligerents.  When  this  is  done,  the  war  becomes 
a  territorial  one,  and  all  inhabitants  of  the  revolting  dis- 
trict become  ipso  facto  public  enemies.16 

The  right  of  confiscation  and  other  belligerent  rights 
thus  exercisable  by  the  military  authorities  within  the 
United  States  during  civil  war  must,  in  every  case,  be 
authorized  by  some  competent  officer  or  tribunal  acting 
under  the  sanction  of  an  act  of  Congress.  That  is  to  say, 
the  individual  soldier  or  officer  is  not  allowed  individually, 
and 'without  obtaining  the  decree  of  a  competent  military 
or  other  tribunal,  to  seize  private  property  as  a  prize  of 
war.17 

Military  government  of  domestic  territory  in  times  of  peace 

Military  governments  established  on  foreign  territory 
in  time  of  war  do  not  necessarily  come  to  an  end  with  the 
declaration  of  peace  and  the  annexation  of  the  occupied 
territory  to  the  United  States;  and  the  same  is  true  after 
the  conclusion  of  peace  of  military  governments  estab- 
lished in  insurrectionary  domestic  territory.  But  these 
governments,  though  military  in  character,  rest  upon  a 
different  basis,  and  have  somewhat  different  powers  from 
those  maintained  during  war. 

Military   governments   in   time   of   peace,  whether  in 

16  Mrs.  Alexander's  Cotton,  2  Wall.  404;  17  L.  ed.  915;  Miller 
v.  United  States,  11  Wall.  268;  20  L.  ed.  135. 

17  Brown  v.  United  States,  8  Cr.  110;  3  L.  ed.  504. 


LAW  OF  THE  UNITED  STATES  505 

territories  newly  annexed  to  the  United  States,  or  in  dis- 
tricts lately  in  rebellion,  no  longer  derive  their  author- 
ity from  the  President  as  commander-in-chief  of  the  army 
and  navy,  but  exist  by  the  tacit  or  express  command  of 
Congress.  Until  Congress  acts,  the  President  may  main- 
tain military  governments  by  virtue  of  the  fact  that  he  is 
commander-in-chief  of  the  army  and  navy,  and  obligated 
to  "take  care  that  the  laws  be  faithfully  executed  wherever 
the  Federal  sovereignty  extends."  Such  governments  as 
he  may  establish  or  continue  in  existence  in  annexed  terri- 
tory after  the  conclusion  of  war  are,  however,  subject  to 
the  will  of  Congress  either  to  change  or  abolish. 

Illustrative  of  this  principle  were  the  military  govern- 
ments set  up  in  the  Southern  States  during  and  after  the 
Civil  War.  While  that  war  was  in  progress  there  was  no 
question  as  to  the  power  of  the  Executive  to  set  up  military 
governments  in  districts  occupied  by  the  Federal  troops. 
With  the  conclusion  of  that  war,  however,  Congress  at 
once  asserted  its  exclusive  right  to  determine  the  manner 
in  which  the  States  lately  in  secession  should  be  ruled 
until  their  civil  status  should  be  fully  restored. 

The  right  of  Congress  to  maintain  military  govern- 
ments in  States  of  the  Union  after  the  restoration  of  peace 
was  based  partly  on  the  ground  of  military  necessity — that, 
though  war  had  ceased,  the  results  for  which  it  had  been 
waged  were  not  yet  fully  secured — and  partly  on  the 
ground  that  it  lay  with  Congress  to  guarantee  to  the  States 
loyal  governments  republican  in  form,  and  that  to  obtain 
these  it  was  necessary  for  a  time  to  furnish  protection 
to  the  loyal  portions  of  their  populations.18 

Though  military  in  form  the  governments  established 
or  maintained  by  the  President  in  time  of  peace  in  terri- 
tories subject  to  the  sovereignty  of  the  United  States  may 


18  Texas  v.  White,  7  Wall.  700;  19  L.  ed.  227. 


506  PRINCIPLES  OF  THE  CONSTITUTIONAL 

not  be  granted  as  complete  a  governing  authority  as  that 
which  they  possess  in  time  of  war.  The  authority  which 
may  constitutionally  be  given  to  or  exercised  by  them  is 
determined  by  the  purposes  for  which  they  exist.  In 
time  of  war  they  have  full  power,  legislative,  executive, 
and  judicial,  to  do  anything  the  laws  of  war,  as  deter- 
mined by  international  usage,  permit  to  be  done  that  will 
strengthen  themselves  or  weaken  the  enemy.  War  hav- 
ing ended,  however,  and  the  territory  become  domestic, 
the  powers  of  the  military  commander  become  simply 
administrative  in  character,  and  his  acts,  so  far  as  the 
necessities  of  the  case  permit,  are  limited  by  the  general 
and  constitutional  laws  of  the  country  under  which  he 
acts.  He,  in  fact,  no  longer  enjoys  authority  by  virtue 
of  belligerent  right,  but  as  an  agent  of  the  sovereign  of 
the  country  for  the  establishment  and  maintenance  of 
civil  rights  therein.  As  Magoon  expresses  it,  he  ceases 
to  occupy  the  place  of  the  suspended  or  expelled  sovereign- 
ty, and  becomes  an  instrument  of  the  new  sovereignty. 
He  becomes  the  representative  of  sovereignty  instead  of  a 
substitute.19 

The  powers  of  the  military  government  in  time  of  peace 
in  domestic  territory  being  simply  those  of  a  local  adminis- 
trative agent  of  the  United  States,  are  subject  to  two 
general  limitations.  First,  being  of  an  administrative 
character,  they  do  not  include  general  legislative  power, 
that  is,  the  authority  to  establish  laws  of  more  than 
strictly  local  effects;  and,  second,  such  powers  as  are  pos- 
sessed, are  subject  to  the  privileges  and  immunities  created 
and  guaranteed  by  the  Constitution.  How  far  these 
constitutional  privileges  apply  to  governments,  whether 
military  or  civil,  established  in  territories  belonging  to, 
but  not  "  incorporated "  into  the  United  States,  has  been 

19  Reports  on  the  Law  of  Civil  Government  in  Territory  Subject  to 
Military  Occupation,  p.  20. 


LAW  OF  THE  UNITED  STATES  507 

considered  in  an  earlier  chapter.  In  all  other  domestic 
territory,  whether  in  a  Territory  or  a  State  lately  in  re- 
bellion, these  constitutional  limitations  apply,  and  the 
agents  have,  therefore,  and  can  be  endowed  by  Congress 
and  the  executive  only  with  such  powers  as  may  be  ex- 
ercised at  any  time  and  in  any  place  under  the  doctrines 
of  " martial"  as  distinguished  from  " military  law."  In 
short,  their  extent  is  measured  by  the  necessity  for  their 


20  Raymond  v.  Thomas,  91  U.  S.  712;  23  L.  ed.  434;  Dooley  v. 
United  States,  182  U.  S.  222;  21  Sup.  Ct.  Rep.  762;  45  L.  ed.  1074. 


CHAPTER  LII 

MARTIAL  LAW 

Martial  law  defined 

In  the  most  comprehensive  sense  of  the  term,  Martial 
Law  includes  all  law  that  has  reference  to,  or  is  adminis- 
tered by,  the  military  forces  of  the  State.  Thus  it  includes 
(1)  Military  Law  Proper,  that  is,  the  body  of  administra- 
tive laws  created  by  Congress  for  the  government  of  the 
army  and  navy  as  an  organized  force;  (2)  the  principles 
governing  the  conduct  of  military  forces  in  time  of  war, 
and  in  the  government  of  occupied  territory;  and  (3) 
Martial  Law  in  sensu  strictiore,  or  that  law  which  has  ap- 
plication when  the  military  arm  does  not  supersede  civil 
authority  but  is  called  upon  to  aid  in  the  execution  of  its 
civil  functions.1  This  last  form  of  Martial  Law,  which  is 
to  be  considered  in  this  chapter,  is  to  be  sharply  distin- 
guished from  those  forms  of  Military  Law  which  have 
been  already  considered.2 

Martial  law  a  form  of  the  police  power 

That  which  brings  martial  law  closely  into  relation  with 
military  law  is  the  fact  that  it  is  administered  by  the  armed 
forces  of  the  State,  and  that  it  partakes,  in  a  measure  at 
least,  of  its  absolute  character.  That  is  to  say,  under  its 
control,  certain  of  the  guarantees  to  the  individual  against 
personal  injury  on  the  part  of  those  in  authority  furnished 
by  the  civil  law,  are  in  abeyance.  But  in  all  other  re- 

1  Ex  parte  Milligan,  4  Wall.  2;  18  L.  ed.  281. 

2  Chapter  LI. 

508 


LAW  OF  THE  UNITED  STATES  509 

spects,  as  we  shall  see,  martial  law  belongs  in  the  field 
of  civil  rather  than  that  of  the  military  law.  Indeed, 
martial  law  is  essentially  a  branch  of  the  police  laws  of 
the  State,  and  its  exercise  is  governed  by  the  same  princi- 
ples as  those  which  control  the  exercise  of  the  so-called 
Police  Powers  of  the  State.3 

Martial  power  limited 

However,  as  we  have  earlier  seen,  though  there  are 
necessarily  many  circumstances  under  which  the  political 
power,  in  behalf  of  public  interests,  may  interfere  with 
the  freedom  of  action  of  the  individual  and  the  use  by 
him  of  his  own  property,  in  no  one  of  these  instances 
may  this  interference  be  an  arbitrary  one.  That  is  to 
say,  in  each  case  the  propriety  of  ths  interference  may  be 
questioned  by  the  individual,  and,  when  so  questioned, 
the  official  whose  act  constitutes  the  interference  must  be 
able  to  justify  his  act  by  referring  to  a  valid  law  and  to 
some  consideration  of  public  necessity  or  convenience.  If 
a  person  is  drafted  into  military  service,  there  must  have 
been  enacted  a  valid  drafting  law,  including  within  its 
application  the  class  of  persons  to  which  the  individual 
drafted  belongs.  If  a  contract  formally  valid  is  refused 
enforcement,  it  must  be  shown  to  be  opposed  to  public 
policy.  If  property  is  taken  under  eminent  domain  it 
must  be  for  a  public  use,  and  compensation  must  be  given. 
If  the  rates  charged  by  public  service  corporations  are 
regulated  by  law,  the  regulation  must  be  a  reasonable  one 
and  not  one,  in  its  effect,  confiscatory  of  private  property. 
Finally,  to  constitute  a  valid  exercise  of  the  so-called  police 
power  of  the  State  there  must  be  shown  some  public 
advantage  to  be  gained  by  thus  interfering  with  the  per- 
sonal liberty  and  property  rights  of  the  individual. 

Now,  in  exactly  the  same  way  in  which  the  civil  author- 

3  See  ante,  p.  341. 


510  PRINCIPLES  OF  THE  CONSTITUTIONAL 

ities  may  by  law  or  through  executive  action  control  the 
activities  of  the  individual  and  the  use  of  his  property  in 
the  interest  of  the  public  good,  the  military  arm  of  a 
government  may  be  employed  to  preserve  the  public 
peace  and  to  secure  the  execution  of  the  laws. 

In  European  countries,  living  under  written  constitu- 
tions, provision  is  quite  generally  made  for  the  declaration 
in  times  of  danger  of  what  is  called  a  "  state  of  siege,"  the 
effect  of  which  is  immediately  to  suspend  the  operation 
of  all  the  ordinary  constitutional  limitations  upon  execu- 
tive power.  No  similar  status  is  known  to  American  law. 
The  use  of  the  military  arm  of  our  States  or  of  the  Federal 
Government  in  time  of  peace  and  upon  domestic  soil  to 
maintain  order  and  secure  the  execution  of  law  in  no  wise 
operates  to  suspend  civil  law  or  to  negate  the  individual 
rights  of  liberty  and  property,  any  more  than  the  ordinary 
exercise  of  the  police  powers  of  the  State  has  this  effect. 
The  use  of  the  military  forces  of  a  State  for  the  mainte- 
nance of  order  and  law  is,  indeed,  not  dissimilar  in  purpose 
and  character  to  the  employment  by  a  sheriff  of  a  posse 
comitatus  to  assist  him  in  making  an  arrest,  preventing 
an  escape  or  serving  a  writ.  In  both  cases  those  who 
exercise  authority  are  obliged  to  justify  whatever  acts  they 
may  have  committed  by  showing  their  necessity,  or,  at 
least,  producing  evidence  to  show  that  they  had  reason- 
able grounds  for  believing  them  to  be  necessary. 

Martial  law  does  not  abrogate  civil  law  and  civil  guarantees 

There  is,  then,  strictly  speaking,  no  such  thing  in  Ameri- 
can law  as  a  declaration  of  martial  law  whereby  military 
is  substituted  for  civil  law.  So-called  declarations  of 
martial  law  are,  indeed,  often  made,  but  the  legal  effect 
of  these  goes  no  further  than  to  warn  citizens  that  the 
military  powers  have  been  called  upon  by  the  executive 
to  assist  him  in  the  maintenance  of  law  and  order,  and 


LAW  OF  THE  UNITED  STATES  511 

i 

that,  while  the  emergency  lasts,  they  must,  upon  pain  of 
arrest  and  punishment,  not  commit  any  acts  which  will 
in  any  way  render  more  difficult  the  restoration  of  order 
and  the  enforcement  of  law.4 

During  the  time  that  the  military  forces  are  employed 
for  the  enforcement  of  law,  that  is  to  say,  when  so-called 
martial  law  is  in  force,  no  new  powers  are  given  to  the 
executive,  no  extension  of  arbitrary  authority  is  recognized, 
no  civil  rights  of  the  individual  are  suspended.  The  re- 
lations of  the  citizen  to  his  State  are  unchanged.  What- 
ever interference  there  may  be  with  his  personal  freedom 
or  property  rights  must  be  justified,  as  in  the  case  of 
the  police  power,  by  necessity,  actual  or  reasonably  pre- 
sumed. During  times  of  disorder,  such  as  lead  to  a  call 
upon  the  military  forces  for  assistance,  necessity  natu- 
rally demands  the  commission  of  acts  which  in  more  tran- 
quil times  are  not  demanded,  and  thus  in  fact,  those  in 
authority  may  control  the  individual  and  his  property  in 
ways  which  they  could  not  legally  do  at  other  times,  but 
the  principle  still  holds  good  that  necessity,  and  necessity 
alone,  will  justify  an  infringement  upon  private  rights  of 
person  and  property. 

Martial  law  and  military  government  distinguished 

It  is  thus  seen  that  martial  rule,  that  is,  the  use  of  the 
military  arm  for  the  enforcement  of  civil  law,  is  something 
quite  different  from  the  establishment  of  military  govern- 
ment  over  territory  conquered  in  public  war.  Mr.  Ma- 
goon  draws  this  distinction  admirably  in  the  following 
words:  "A  military  government,"  he  says,  " takes  the 
place  of  a  suspended  or  destroyed  sovereignty,  while  martial 
law,  or,  more  properly,  martial  rule,  takes  the  place  of 
certain  governmental  agencies  which  for  the  time  being  are 
unable  to  cope  with  existing  conditions  in  a  locality  which 

4  Ela  v.  Smith,  5  Gray  (Mass.),  121, 


512  PRINCIPLES  OF  THE  CONSTITUTIONAL 

remains  subject  to  the  sovereignty.  The  occasion  of 
military  government  is  the  expulsion  of  the  sovereignty 
theretofore  existing,  which  is  usually  accomplished  by  a 
successful  military  invasion.  The  occasion  of  martial 
rule  is  simply  public  exigency  which  may  arise  in  time  of 
war  or  peace.  A  military  government,  since  it  takes  the 
place  of  a  deposed  sovereignty,  of  necessity  continues 
until  a  permanent  sovereignty  is  again  established  in  the 
territory.  Martial  rule  ceases  when  the  district  is  suffi- 
ciently tranquil  to  permit  the  ordinary  agencies  of  govern- 
ment to  cope  with  existing  conditions."  5 

It  is  to  be  observed  before  leaving  this  point  that,  so 
far  as  regards  the  acts  that  may  be  done  by  military  and 
civil  authorities  in  effectuating  their  purposes,  the  neces- 
sity for  them  being  present,  there  is  no  difference  between 
the  commander's  powers  in  a  domestic  insurrection  and 
in  a  war.  As  the  Supreme  Court  of  Pennsylvania  in  a 
recent  case  has  said:  "In  truth  he  has  whatever  powers 
may  be  needed  for  the  accomplishment  of  the  end,  but 
his  use  of  them  is  followed  by  different  consequences. 
In  war  he  is  answerable  only  to  his  military  superiors, 
but  for  acts  done  in  domestic  territory,  even  in  the  sup- 
pression of  public  disorder,  he  is  accountable,  after  the 
exigency  has  passed,  to  the  laws  of  the  land,  both  by  prose- 
cution in  the  criminal  courts  and  by  civil  action  at  the 
instance  of  the  parties  aggrieved." ' 

Martial  law  in  time  of  war 

Thus  far  the  discussion  has  related  to  martial  rule  as 
exercisable  in  time  of  peace,  that  is,  in  times  when,  to  be 
sure,  civil  disorder  prevails,  but  when  war — public  war — 


6  Reports  on  the  Law  of  Civil  Government  in  Territories  Subject  to 
Military  Occupation. 

6  Wadsworth  v.  Shortall,  206  Pa.  St.  165.  See,  also,  Moyer  v. 
Peabody,  212  U.  S.  78;  29  Sup.  Ct.  Rep.  235;  53  L.  ed.  410. 


LAW  OF  THE  UNITED  STATES  513 

does  not  exist.  We  have  now  to  speak  of  martial  rule 
when  this  latter  condition  is  present. 

It  has  already  been  learned  that  in  war  the  enemy,  be 
he  a  foreign  one,  or  a  rebel  to  whom  the  status  of  belliger- 
ent has  been  given,  has  no  legal  rights  which  those  opposed 
to  him  must  respect. 

When  a  civil  contest  becomes  a  public  war,  all  persons 
living  within  limits  declared  to  be  hostile  become  ipso 
facto  enemies,  and  subject  to  treatment  as  such.7 

Different  conditions  prevail,  however,  in  loyal  districts. 
In  these  the  existence  of  war  does  not  operate  to  destroy 
or  suspend  the  civil  rights  of  the  inhabitants. 

Upon  the  actual  scene  of  war,  there  is  no  question 
that,  for  the  time  being,  the  military  authorities  are  su- 
preme, and  that  these  may  do  whatever  may  be  necessary 
in  order  that  the  military  operations  which  are  being  pur- 
sued may  succeed.  Here  martial  law  becomes  indis- 
tinguishable from  military  government.  "When  martial 
law  is  invoked  in  face  of  invasion  or  rebellion  that  rises 
to  proportions  of  belligerency,  it  is  war  power  pure  and 
simple."  It  is  in  this  sense  that  Field  defines  martial 
law  as  "simply  military  authority  exercised  in  accordance 
with  the  laws  and  usages  of  war,"  and  the  Supreme  Court 
defines  it  as  "the  law  of  necessity  in  the  actual  presence 
of  war."  8 

The  necessities  being  great  and  extraordinary,  the 
executive  and  administrative,  that  is  to  say,  the  military, 
action  that  will  be  justified  is  correspondingly  extensive. 
But,  the  populace  being  loyal,  and  the  territory  domestic, 
private  rights  of  persons  and  property  still  persist,  though 
subject,  as  in  all  other  cases,  to  the  exercise  of  the  police 
powers  of  the  State.  Those  who  exercise  these  powers, 
though  military  in  character,  still  remain  liable  for  any 

7  Ford  v.  Surget,  97  U.  S.  594;  24  L.  ed.  1018. 

8  United  States  v,  Diekelman,  92  U.  S.  520;  23  L.  ed.  742. 

33 


514  PRINCIPLES  OF.  THE  CONSTITUTIONAL 

abuse  of  their  authority.  The  civil  courts  are  not  necessar- 
ily closed,  nor  are  any  of  the  private  actions  of  individuals 
subject  to  restraint  except  in  so  far  as  the  efficiency  of 
public  service  may  require. 

Private  property  may  be  seized  and  appropriated  to  a 
public  use  without  the  consent  of  the  owner,  when  the 
public  necessity  demands.  This  taking  of  private  property 
is,  however,  the  courts  have  declared,  not  an  exercise  of 
military  power  which  gives  to  the  owner  no  claim  for  com- 
pensation, but  a  taking  for  the  public  use  which,  under 
the  provision  of  the  Fifth  Amendment,  demands  that 
compensation  be  made.  The  manner  of  taking,  however, 
may  be  that  of  the  police  power  in  that  the  urgency  may 
not  permit  the  ordinary  proceedings  for  valuation  and 
condemnation  .9 

Exercise  of  military  authority  outside  the  immediate  theatre 

of  war— Ex  parte  Milligan 

Under  the  stress  of  military  exigency,  upon  the  actual 
theatre  of  war  such  civil  guarantees  as  the  writ  of  habeas 
corpus,  immunity  from  search  and  seizure,  etc.,  may,  of 
course,  be  suspended.  As  to  this  there  is  no  question. 
There  is,  however,  a  serious  question  whether,  when  war 
exists,  these  rights  may,  by  legislative  act  or  executive 
proclamation,  be  suspended  in  regions  more  or  less  re- 
mote from  active  hostilities.  This  question  was  raised 
and  carefully  considered  in  the  famous  Milligan  case10 
in  which  the  Supreme  Court  was  called  upon  to  pass  upon 
the  authority  of  a  military  commission,  during  the  Civil 
War,  to  try  and  sentence  upon  the  charge  of  conspiracy 
against  the  United  States  Government  one  Milligan, 
who  was  not  a  resident  of  one  of  the  rebellious  States,  nor 


9  United  States  v.  Russell,  13  Wall.  623;  20  L.  ed.  474.    See,  also, 
Mitchell  v.  Harmony,  13  Wall.  115;  14  L.  ed.  75. 

10  Ex  parte  Milligan,  4  Wall.  2;  18  L.  ed.  281. 


LAW  OF  THE  UNITED  STATES  515 

a  prisoner  of  war,  nor  ever  in  the  military  or  naval  service 
of  the  United  States,  but  was  at  the  time  of  his  arrest  a 
citizen  of  the  State  of  Indiana  in  which  State  no  hostile 
military  operations  were  then  being  conducted. 

The  military  commission  had  been  created  pursuant  to 
an  act  of  Congress  of  March  3,  1863,  authorizing  the  sus- 
pension of  the  writ  of  habeas  corpus  throughout  the 
United  States  by  the  President,  but  providing  that  lists 
of  persons,  not  prisoners  of  war,  held  under  military 
authority  should  be  furnished  within  a  given  time  to  the 
judges  of  the  Federal  circuit  and  district  courts,  and  that 
one  so  imprisoned  whose  name  was  not  so  reported  might 
appeal  for  release  to  the  civil  courts. 

Five  of  the  justices  of  the  Supreme  Court  held  that 
Congress  was  without  the  constitutional  authority  to 
suspend  or  authorize  the  suspension  of  the  writ  of  habeas 
corpus,  and  to  provide  military  commissions  in  States 
outside  the  sphere  of  active  military  operations  and  with 
their  civil  courts  open  and  ready  for  the  transaction  of 
judicial  business.  The  remaining  four  justices  held  that 
Congress  had  not  in  fact  made  legislative  provision  for 
the  military  tribunal  in  question,  but  asserted  that  it 
possessed  the  constitutional  authority  so  to  do,  should  it 
see  fit. 

There  would  seem  t«  be  but  little  question  that  the 
doctrine  stated  by  the  majority  in  the  Milligan  case  is 
essentially  a  sound  one,  namely,  that  actual  necessity 
and  not  constructive  necessity  as  determined  by  legisla- 
tive declaration,  alone  will  furnish  justification  for  sub- 
stituting martial  for  civil  law.  It  would  seem,  however, 
that  in  one  respect  the  opinion  is  open  to  criticism.  The 
statement  is  too  absolutely  made  that  "  martial  law  cannot 
arise  from  a  threatened  invasion.  The  necessity  must  be 
actual  and  present;  the  invasion  real,  such  as  effectually 
closes  the  courts  and  deposes  the  civil  administration." 


516  PRINCIPLES  OF  THE  CONSTITUTIONAL 

It  is  correct  to  say  that  "the  necessity  must  be  actual 
and  present,"  but  it  is  not 'correct  to  say  that  this  necessity 
cannot  be  present  except  when  the  courts  are  closed  and 
deposed  from  civil  administration,  for,  as  the  minority 
justices  correctly  point  out,  there  may  be  urgent  necessity 
for  martial  rule  even  when  the  courts  are  open.  The 
better  doctrine,  then,  is  not  for  the  court  to  attempt  to 
determine  in  advance  with  respect  to  any  one  element, 
what  does,  and  what  does  not  create  a  necessity  for  martial 
law,  but,  as  in  all  other  cases  of  the  exercise  of  official 
authority,  to  test  the  legality  of  an  act  by  its  special  cir- 
cumstances. Certainly  the  fact  that  the  courts  are  open 
and  undisturbed  will  in  all  cases  furnish  a  powerful  pre- 
sumption that  there  is  no  necessity  for  a  resort  to  martial 
law,  but  it  should  not  furnish  an  irrebuttable  presumption. 

Habeas  corpus 

The  writ  of  habeas  corpus  ad  subjidendum  is  one  of  a 
number  of  so-called  extraordinary  judicial  writs,  which 
like  those  of  certiorari,  quo  warranto,  mandamus  and 
injunction  are  issued  by  the  courts  either  in  order  that  their 
commands  may  be  executed,  or  that  a  matter  may  be 
brought  before  them  for  judicial  determination.  This 
especial  writ,  often  termed  "the  writ  of  liberty/'  had  be- 
come one  of  the  established  rigRts  of  the  citizen  before 
the  separation  of  the  American  colonies  from  the  mother 
country,  and  has  ever  since  been  regarded  by  American 
citizens  as  the  greatest  of  the  safeguards  erected  by  the 
civil  law  against  arbitrary  and  illegal  imprisonment  by 
whomsoever  the  detention  may  be  exercised  or  ordered. 
Issued  as  of  right  by  any  court  of  competent  jurisdiction, 
it  orders  those  to  whom  it  is  directed  to  show  good  legal 
justification  for  holding  in  custody  the  person  in  whose 
favor  it  is  given.  Where  such  sufficient  cause  is  not 
shown,  an  order  of  release  follows  as  of  course. 


LAW  OF  THE  UNITED  STATES  517 

Suspension  of  the  writ 

The  United  States  Constitution  declares  that  "The 
privilege  of  the  writ  of  habeas  corpus  shall  not  be  sus- 
pended, unless  when  in  cases  of  rebellion  or  invasion,  the 
public  safety  may  require  it."  The  implication  from 
this  language  is  that  the  writ  shall  not  be  suspended,  ex- 
cept in  the  cases  mentioned.  The  prohibition  is  directed 
only  to  the  Federal  Government.  Aside,  therefore,  from 
the  specific  provisions  of  their  several  constitutions,  the 
States  are  free  to  suspend  the  writ,  but  in  case  they  do  so 
and  without  sufficient  excuse,  the  person  detained  may 
of  course,  obtain  the  writ  from  a  Federal  court  under  the 
claim  that  he  is  deprived  of  liberty  without  due  process  of 
law  or  in  derogation  of  some  other  Federal  right,  privilege 
or  immunity. 

The  suspension  of  the  privilege  of  the  writ,  it  is  to  be 
observed,  does  not  deprive  the  courts  of  the  right  to  issue 
it.  It  furnishes  merely  a  legal  ground  for  a  refusal  to 
obey  it.11 

Furthermore,  the  suspension  of  the  writ  goes  no  further 
than  to  justify  this  refusal.  It  thus  enables  executive 
agents  to  make  arrests  at  will,  and,  while  the  suspension 
is  in  force,  renders  it  impossible  for  those  apprehended  to 
obtain  a  judicial  judgment  upon  the  legality  of  such  ar- 
rests and  detention.  But  it  does  not  operate  actually 
to  authorize  such  arrests,  or  to  deprive  the  individual 
of  any  of  the  other  rights  which  the  law  secures  him,  and, 
therefore,  the  persons  responsible  for  the  arrests  and  de- 
tentions may  still  be  held  civilly  and  criminally  responsible 
for  any  illegal  acts  that  they  may  have  committed.  In 
time  of  war,  or  of  domestic  disorder  or  insurrection,  when 
so-called  martial  law  has  been  declared,  the  privilege  of 
the  writ  of  habeas  corpus,  together  with  all  the  other  civil 


11  Ex  parte  Vallandigham,  1  Wall.  243;  17  L.  ed.  589. 


518  PRINCIPLES  OF  THE  CONSTITUTIONAL 

guarantees  may,  for  the  time  being,  be  suspended;  but, 
as  we  have  already  learned  in  the  preceding  chapter,  actual 
public  necessity,  and  this  alone,  will  furnish  legal  justifi- 
cation for  this. 

The  existence  of  civil  war  operates  as  regards  the  enemy 
ipso  facto,  that  is,  without  formal  declaration,  as  a  sus- 
pension of  the  privilege  of  the  writ  of  habeas  corpus,  to- 
gether with,  as  said,  the  suspension  of  the  other  guarantees 
to  the  individual  against  arbitrary  executive  action.  In 
the  preceding  chapter  the  principle  was  sustained  that  the 
establishment  of  martial  law  may  properly  take  place 
not  only  upon  the  theatre  of  active  hostilities,  but  else- 
where when  the  actual  necessities  of  the  case  demand  it. 

The  suspension  of  the  privilege  of  the  writ  of  habeas 
corpus  falls  short  of  the  establishment  of  martial  law,  but 
to  justify  it  there  is  required  the  same  public  necessity 
as  that  required  for  the  enforcement  of  martial  law.  The 
same  reasoning,  therefore,  that  was  employed  with  refer- 
ence to  this  latter  subject  is  applicable  to  the  question 
of  the  suspension  of  the  writ  of  habeas  corpus,  and  need 
not  here  be  repeated. 

Power  of  the  President  to  suspend  the  writ 

In  Ex  parte  Bollman  12  the  Supreme  Court  in  its  opinion 
took  for  granted  that  the  power  of  suspension  lay  with 
Congress,  and  the  same  view  was  held  by  Story  in  his 
Commentaries. ,13 

The  correctness  of  this  view  does  not  appear  to  have 
been  questioned  until  the  early  period  of  the  Civil  War, 
when  President  Lincoln,  upon  the  advice  of  his  Attorney- 
General,  declared  that  the  power  lay  with  him,  and  by 
various  proclamations  authorized  the  suspension  of  the 


124Cr.  75;  2  L.  ed.  554. 
13  §  1336. 


LAW  OF  THE  UNITED  STATES  519 

writ  in  places  both  within  and  without  the  area  of  active 
hostilities. 

The  rightfulness  of  this  assumption  of  power  by  the 
President  was  severely  criticised  notwithstanding  the  ar- 
guments of  the  Attorney-General  and  of  the  eminent 
jurist  Horace  Binney.  This  criticism  was  judicially  ex- 
pressed by  Chief  Justice  Taney  in  a  protest  which  he  filed 
in  the  case  of  Ex  parte  Merryman.14 

In  that  case  obedience  to  a  writ  which  he  had  issued 
being  refused  by  a  military  officer  of  the  United  States, 
acting  under  the  authority  of  the  President,  Taney  recog- 
nized his  inability  to  compel  its  execution  and  filed  a 
protesting  opinion  in  the  course  of  which,  after  calling 
attention  to  the  fact  that  the  constitutional  provision 
providing  for  the  suspension  of  the  writ  is  found  in  the 
article  which  is  devoted  to  the  legislative  department  and 
is,  therefore,  to  be  presumed  to  relate  to  the  powers  of 
Congress,  he  said:  "The  only  power,  therefore,  which  the 
President  possesses,  where  the  'life,  liberty  or  property' 
of  a  citizen  are  concerned,  is  the  power  and  duty  prescribed 
in  the  third  section  of  the  second  article,  which  requires 
'that  he  shall  take  care  that  the  laws  are  faithfully  exe- 
cuted.' He  is  not  authorized  to  execute  them  himself, 
or  through  agents  or  officers,  civil  or  military,  appointed 
by  himself,  but  he  is  to  take  care  that  they  be  faithfully 
carried  into  execution,  as  they  are  expounded  and  ad- 
judged by  the  co-ordinate  branch  of  the  government  to 
which  that  duty  is  assigned  by  the  Constitution.  It  is 
thus  made  his  duty  to  come  to  the  aid  of  the  judicial 
authority  if  it  shall  be  resisted  by  a  force  too  strong  to  be 
overcome  without  the  assistance  of  the  executive  arm. 
But  in  exercising  this  power  he  acts  in  subordination  to 
judicial  authority,  assisting  it  to  execute  the  process  and 
enforce  its  judgments." 

14  Taney1  s  Reports,  246. 


520  PRINCIPLES  OF  CONSTITUTIONAL  LAW 

"With  such  provision  in  the  Constitution,  expressed 
in  language  too  clear  to  be  misunderstood  by  any  one," 
said  Taney,  "I  can  see  no  ground  whatever  for  supposing 
that  the  President,  in  any  emergency  or  in  any  state  of 
things,  can  authorize  the  suspension  of  the  privilege  of  the 
writ  of  habeas  corpus  or  arrest  a  citizen  except  in  aid  of 
the  judicial  power." 

That  Taney's  reasoning  is  correct  there  would  now 
seem  to  be  little  question.  The  point  has  never  since 
been  squarely  passed  upon  by  the  courts,  but  in  1863 
Congress  considered  it  necessary  specifically  to  authorize 
the  President  to  suspend  the  writ,  and  commentators 
now  agree  that  the  power  to  suspend  or  authorize  the 
suspension  lies  entirely  in  Congress.15 

15  Cf.  Winthrop,  Military  Law,  and  Tucker,  Constitution  of  United 
States,  II,  pp.  642-652. 


CHAPTER  LIII 

THE   SEPARATION   OF   POWERS 

The  separation  of  powers 

A  fundamental  principle  of  American  constitutional 
jurisprudence,  accepted  alike  in  the  public  law  of  the 
Federal  Government  and  of  the  States,  is  that,  so  far  as 
the  requirements  of  efficient  administration  will  permit, 
the  exercise  of  the  executive,  legislative  and  judicial 
powers  is  to  be  vested  in  separate  and  independent  organs 
of  government.  The  value  of  this  principle  or  practice 
in  protecting  the  governed  from  arbitrary  and  oppressive 
acts  on  the  part  of  those  in  political  authority,  has  never 
been  questioned  since  the  time  of  autocratic  royal  rule  in 
England.  That  the  doctrine  should  govern  the  new  con- 
stitutional system  established  in  1789  was  not  doubted. 

Separation  of  powers  in  the  States  not  compelled  by  the 

Federal  Constitution 

It  is  to  be  observed  that  this  general  acceptance  by 
the  States  of  the  principle  of  the  separation  of  powers 
is  not  one  forced  upon  them  by  Federal  law,1  except  in 
so  far  as  the  prohibition  of  the  Fourteenth  Amendment 
with  reference  to  the  depriving  any  person  of  life,  liberty 
or  property  without  due  process  of  law  is  operative,  or 
possibly,  in  extreme  cases,  where  it  might  be  held  that  the 
government  is  not  republican  in  form.  Nor,  as  we  shall 
later  see,  do  the  distributing  clauses  in  the  State  con- 
stitutions operate  to  prevent  the  consolidation  of  judicial, 

Calder  v.  Bull,  3  Ball.  386;  1  L.  ed.  648. 

521 


522  PRINCIPLES  OF  THE  CONSTITUTIONAL 

executive  and  legislative  powers  in  local  governmental 
organs.2 

Powers  separated  in  the  Federal  Government 

The  Federal  Constitution  does  not  contain  a  specific 
distributing  clause,  but  its  equivalent  is  found  in  the 
clauses  which  provide  that  "all  legislative  power  herein 
granted  shall  be  vested  in  a  Congress  of  the  United  States," 
that  "the  executive  power  shall  be  vested  in  a  President 
of  the  United  States  of  America,"  and  that  "the  judicial 
power  of  the  United  States  shall  be  vested  in  one  Supreme 
Court,  and  in  such  inferior  courts  as  Congress  may  from 
time  to  time  ordain  and  establish." 

These  provisions,  interpreted  in  the  light  of  the  accepted 
doctrines  that  each  and  all  of  the  Federal  organs  of  govern- 
ment possess  only  those  powers  granted  them  by  the  Con- 
stitution, and  that  the  powers  not  granted  may  not  by 
them  be  delegated  to  other  and  different  organs,  have, 
from  the  beginning,  been  held  to  secure  what  the  specific 
distributing  clauses  in  the  State  constitutions  are  de- 
signed to  provide.3 

To  preserve  the  separation  of  powers  and  to  render 
government  efficient  for  the  protection  of  civil  liberty, 
the  framers  of  our  Federal  and  State  constitutions  saw 
that  it  was  necessary  not  simply  to  create  separate  de- 
positaries for  the  three  powers,  but  to  provide  efficient 
means  for  preventing,  if  possible,  the  control  by  one 
department  of  the  other  departments.  With  this  end  in 
the  view,  the  executive,  legislative  and  judicial  estab- 
lishments are  made  as  independent  as  possible  of  one 
another.  Thus  the  legislatures  are  made  the  sole  judges 
as  to  the  constitutional  qualifications  of  those  claiming 


2  Goodnow,  American  Administrative  Law,  p.  35. 
8  Kilbourn  v.  Thompson,  103  U.  S.  168;  26  L.  ed.  377. 


LAW  OF  THE  UNITED  STATES  523 

membership,  they  have  the  power  of  disciplining  and 
expelling  members,  their  members  are  in  general  not 
liable  to  arrest  except  for  felony,  treason,  or  breach  of 
tlie  peace,  and  they  may  not  be  held  responsible  in  actions 
of  slander  or  libel  for  words  spoken  or  printed  by  them  as 
members.  The  independence  of  the  courts  is  in  general 
secured  by  tenures  of  office,  and  official  compensation 
free  from  legislative  control,  and,  furthermore,  they  have 
the  great  power  of  declining  to  recognize  as  valid  all  laws 
or  executive  acts  which  they  hold  to  be  unconstitutional 
or  otherwise  illegal.  The  executive  has,  of  course,  within 
his  own  hands,  the  material  force  of  the  State,  and  within 
the  limits  of  the  discretion  placed  by  law  in  his  hands, 
may  not  be  held  legally  responsible  in  the  courts  for 
his  acts. 

Separation  of  powers  not  complete 

While,  as  has  been  said,  the  principle  of  the  separation 
of  the  powers  has  generally  been  accepted  as  binding  in 
our  systems  of  constitutional  jurisprudence — State  and 
national — the  practical  necessities  of  efficient  government 
have  prevented  its  complete  application.  It  has  from 
the  beginning  been  necessary  to  vest  in  each  of  the  three 
departments  of  government  certain  powers,  which,  in 
their  essential  nature,  would  not  belong  to  it.  Thus,  to 
mention  only  a  few  of  the  more  evident  examples,  the 
courts  have  been  given  the  essentially  legislative  power  to 
establish  rules  of  practice  and  procedure,  and  the  executive 
power  to  appoint  certain  officials — sheriffs,  criers,  bail- 
iffs, clerks,  etc.,  the  executive  has  been  granted  the  legis- 
lative veto  power,  and  the  judicial  right  of  pardoning; 
the  legislature  has  been  given  the  judicial  powers  of  im- 
peachment, and  of  judging  of  the  qualifications  of  its 
own  members,  and  the  Senate,  the  essentially  executive 
power  of  participating  in  the  appointment  of  civil  officials. 


524  PRINCIPLES  OF  THE  CONSTITUTIONAL 

Not  only  this,  but  as  we  shall  later  see,  the  principle 
of  the  separation  of  powers  does  not  prevent  the  legisla- 
tive delegation  to  executive  officers  of  both  a  considerable 
ordinance-making  power,  and  an  authority  to  pass,  with 
or  without  an  appeal  to  the  courts,  upon  questions  of 
fact.  Essentially,  the  promulgation  of  administrative 
ordinances  or  orders  is  legislative  in  character,  and  the 
determination  of  facts  after  a  hearing  is  judicial.  In 
both  cases,  however,  these  functions  are  performed  in 
pursuance  of  statutory  authority,  and  as  incidental  to 
the  execution  of  law.  In  like  manner,  the  legislature  is 
conceded  to  have,  as  incidental  to  its  law-making  power, 
the  essentially  judicial  function  of  punishing  for  contempt 
or  disobedience  to  its  orders. 

The  general  principle  stated 

Thus  it  is  not  a  correct  statement  of  the  principle  of 
the  separation  of  powers  to  say  that  it  prohibits  abso- 
lutely the  performance  by  one  department  of  acts  which, 
by  their  essential  nature,  belong  to  another.  Rather, 
the  correct  statement  is  that  a  department  may  con- 
stitutionally exercise  any  power,  whatever  its  essential 
nature,  which  has,  by  the  Constitution,  been  delegated 
to  it,  but  that  it  may  not  exercise  powers  not  so  consti- 
tutionally granted,  which,  from  their  essential  nature, 
do  not  fall  within  its  division  of  governmental  functions, 
unless  such  powers  are  properly  incidental  to  the  per- 
formance by  it  of  its  own  appropriate  functions. 

From  the  rule,  as  thus  stated,  it  appears  that  in  very 
many  cases,  the  propriety  of  the  exercise  of  a  power  by  a 
given  department  does  not  depend  upon  whether,  in  its 
essential  nature,  the  power  is  executive,  legislative  or 
judicial,  but  whether  it  has  been  specifically  vested  by 
the  Constitution  in  that  department,  or  whether  it  is 
properly  incidental  to  the  performance  of  the  appropriate 


LAW  OF  THE  UNITED  STATES  525 

functions  of  the  department  into  whose  hands  its  exercise 
has  been  given. 

Generally  speaking,  it  may  be  said  that  when  a  power 
is  not  peculiarly  and  distinctly  legislative,  executive  or 
judicial,  it  lies  within  the  authority  of  the  legislature  to 
determine  where  its  exercise  shall  be  vested. 

Declaratory  and  retroactive  legislation 

Declaratory  statutes,  that  is,  those  legislative  pro- 
nouncements as  to  how  certain  laws,  previously  estab- 
lished, are  to  be  interpreted  in  courts  and  by  executive 
agents,  are  valid  in  so  far  as  they  are  designed  to  govern 
future  action.4 

Retroactive  legislation  which  does  not  impair  vested 
rights,  or  violate  express  constitutional  prohibitions,  is 
valid,  and,  therefore,  particular  legal  remedies,  and,  to  a 
certain  extent,  rules  of  evidence,  may  be  changed  and, 
as  changed,  made  applicable  to  past  transactions,  for  it 
is  held  that,  so  long  as  the  general  requirements  of  due 
process  of  law  are  satisfied,  no  person  has  a  vested  right 
in  any  particular  legal  remedy  or  mode  of  judicial  pro- 
cedure. 

Again,  in  certain  cases,  the  legislature  is  competent  to 
validate  proceedings  otherwise  invalid  because  of  formal 
irregularities.  But  substantive  rights  may  not  thus  be 
interfered  with. 

Legislative  control  of  judicial  procedure  and  powers 

The  power  of  the  courts  to  refuse  to  apply  legislative 
acts  inconsistent  with  constitutional  provisions  has  al- 
ready been  considered.  This  is  as  far  as  the  courts  will 
go  in  the  control  of  the  legislative  department.  They 
do  not  possess  and  have  never  been  claimed  to  possess 
the  power  to  pass  upon  the  credentials  of  one  claiming 

4  Cf.  Cooley,  Constitutional  Limitations,  7th  ed.,  p.  137. 


526  PRINCIPLES  OF  THE  CONSTITUTIONAL 

membership  in  a  legislative  body.  They  do  not  attempt  to 
prescribe  the  rules  by  which  such  bodies  are  governed  in 
the  conduct  of  their  work,  and,  to  only  a  very  limited 
extent,  will  they  question  the  correctness  of  the  legisla- 
tive records  that  are  kept.  Finally,  they  never  attempt 
to  command  or  prohibit  the  performance  of  a  legislative 
act.  Individually,  however,  the  members  of  a  legislature 
are,  of  course,  subject  to  judicial  process,  except  so  far 
as  they  have  been  granted  express  immunity  by  the  Con- 
stitution. 

Upon  the  other  hand,  as  we  shall  see,  the  courts  have 
not  hesitated  to  protect  their  own  independence  from 
legislative  control,  not  simply  by  refusing  to  give  effect 
to  retroactive  declaratory  statutes,  or  to  acts  attempt- 
ing the  revision  or  reversal  of  judicial  determinations, 
but  by  refusing  themselves  to  entertain  jurisdiction  in 
cases  in  which  they  have  not  been  given  the  power  to 
enforce  their  decrees  by  their  own  writs  of  execution. 
Thus  they  have  refused  to  act  where  their  decisions  have 
been  subject  to  legislative  or  executive  revisions.  Finally, 
even  where  the  extent  of  their  jurisdiction,  both  as  to  the 
parties  litigant  and  subject-matter,  has  been  subject  to 
legislative  control,  the  courts  have  not  permitted  them- 
selves to  be  deprived  of  the  power  necessary  for  maintain- 
ing the  dignity,  the  orderly  course  of  their  procedure,  and 
the  effectiveness  of  their  writs. 

In  order  that  a  court  may  perform  its  judicial  functions 
with  dignity  and  effectiveness,  it  is  necessary  that  it  should 
possess  certain  powers.  Among  these  are  the  right  to 
issue  certain  writs,  called  extraordinary  writs,  such  as 
mandamus,  injunction,  certiorari,  prohibition,  etc.,  and, 
especially,  to  punish  for  contempt  and  disobedience  to 
its  orders.  The  possession  of  these  powers  the  courts 
have  jealously  guarded,  and  in  accordance  with  the  con- 
stitutional doctrine  of  the  separation  and  independence 


LAW  OF  THE  UNITED  STATES  527 

of  the  three  departments  of  government,  have  held,  and 
undoubtedly  will  continue  to  hold,  invalid  any  attempt 
on  the  part  of  the  legislature  to  deprive  them  by  statute 
of  any  power  the  exercise  of  which  they  deem  essential  to 
the  proper  performance  of  their  judicial  functions.  The 
extent  of  their  jurisdiction,  they  argue,  may  be  more  or 
less  within  legislative  control,  but  the  possession  of  powers 
for  the  efficient  exercise  of  that  jurisdiction,  whether 
statutory  or  constitutional,  which  they  do  possess,  they 
cannot  be  deprived  of. 

Jurisdiction  and  judicial  power  distinguished 

It  has  been  already  pointed  out  that  the  jurisdiction 
of  the  inferior  Federal  courts  and  the  appellate  jurisdic- 
tion of  the  Supreme  Court  are  wholly  within  the  control 
of  Congress,  depending  as  they  do  upon  statutory  grant. 
It  has,  however,  been  argued  that  while  the  extent  of 
this  jurisdiction  is  thus  within  the  control  of  the  legisla- 
ture, that  body  may  not  control  the  manner  in  which  the 
jurisdiction  which  is  granted  shall  be  exercised,  at  least 
to  the  extent  of  denying  to  the  courts  the  authority  to 
issue  writs  and  take  other  judicial  action  necessary  for 
the  proper  and  effective  execution  of  their  functions.  In 
other  words,  the  argument  is,  that  while  jurisdiction  is 
obtained  by  congressional  grant,  judicial  power,  when 
once  a  court  is  established  and  given  a  jurisdiction,  at 
once  attaches  by  the  direct  force  of  the  Constitution. 

Contempts 

Within  recent  years  the  question  of  the  constitutional 
extent  of  the  legislative  control  over  the  powers  of  the 
courts  has  been  discussed  with  special  reference  to  the 
regulation  of  the  courts'  power  to  punish  for  contempt, 
and  to  issue  writs  of  injunction. 

That,  generally  speaking,  the  power  to  punish  for  con- 


528  PRINCIPLES  OF  THE  CONSTITUTIONAL 

tempt  is  inherent  in  courts  is  beyond  question.  It  may, 
however,  be  argued  that  where  the  existence  and  juris- 
diction of  a  court  are  wholly  within  the  control  of  the 
legislative  body,  as  is  the  case  with  the  inferior  Federal 
courts,  authority  exists  in  the  legislature  to  determine 
the  circumstances  under  which  contempt  may  be  held  to 
have  been  committed,  the  form  of  trial  therefor  and  the 
punishment  which,  upon  conviction,  may  be  inflicted. 
The  power  has,  indeed,  in  a  measure,  been  exercised  by 
Congress  which  by  law  of  March  2,  1831,  limited  the  con- 
tempt powers  of  the  Federal  courts  to  three  classes  of 
cases:  (1)  Those  where  there  has  been  misbehavior  in  the 
presence  of  the  court,  or  so  near  thereto  as  to  interfere 
with  the  orderly  performance  of  its  duties;  (2)  where  there 
has  been  misbehavior  by  an  officer  of  the  court  with  refer- 
ence to  official  transactions;  and  (3)  where  there  has  been 
disobedience  or  resistance  to  any  lawful  writ,  process, 
order,  rule,  decree,  or  command  of  the  court. 

The  constitutionality  of  this  law  does  not  seem  to  have 
been  questioned,  but  it  may  well  be  questioned  whether 
it  could  constitutionally  be  held  to  control  the  Supreme 
Court  which  derives  its  existence  and  much  of  its  juris- 
diction directly  from  the  Constitution. 

Pardoning  powers  of  the  President  and  contempts 

Arguing  from  the  general  principle  of  the  independence 
of  the  three  departments  of  government  it  would  seem 
that  the  question  as  to  the  power  of  the  President  to  par- 
don persons  adjudged  by  one  of  the  Federal  courts  to  be 
in  contempt  should  be  answered  in  the  negative,  for 
clearly  to  give  this  power  to  the  executive  is  to  place  in  his 
hands  a  weapon  with  which  he  may  completely  nullify 
the  court's  power  to  enforce  its  decrees.  To  this  it  may 
be  replied,  however,  that,  having  the  direction  of  the 
armed  forces  of  the  nation  he  has  the  power  in  any  event, 


LAW  OF  THE  UNITED  STATES  529 

and  the  Constitution  vesting  in  him  the  general  power 
"to  grant  reprieves  and  pardons  for  offenses  against  the 
United  States,  except  in  cases  of  impeachment/'  it  would 
seem  to  follow  that  the  power  to  remit  the  punishment  of 
those  convicted  of  contempt  by  the  Federal  courts  is  given. 
With  reference  to  this,  however,  there  is  a  distinction 
to  be  made  between  criminal  and  so-called  civil  contempts.0 
In  civil  contempts  the  defendant  is  fined  or  imprisoned 
in  order  to  obtain  for  a  suitor  his  private  rights.  Punish- 
ment for  criminal  contempts,  upon  the  other  hand,  is 
imposed  to  uphold  and  vindicate  the  dignity  of  the  court. 
Though  the  Supreme  Court  has  never  passed  directly 
upon  this  point,  there  would  seem  to  be  no  doubt  that 
the  pardoning  power  of  the  President  extends  at  least  to 
persons  punished  for  criminal  contempts.6 

Power  of  Congress  to  punish  for  contempt 

In  1821  the  Supreme  Court  by  a  decision  rendered  in 
the  case  of  Anderson  v.  Dunn  7  recognized  the  existence 
in  Congress  of  a  general  power  to  punish  for  contempt  per- 
sons disobeying  its  orders,  especially  those  with  reference 
to  the  giving  of  testimony  and  the  production  of  papers 
before  its  committees  and  commissions  of  inquiry.  In 
the  case  of  Kilbourn  v.  Thompson,8  however,  decided  in 
1881,  the  court  very  much  narrowed  this  power,  holding 
that  Congress  had  the  power  to  compel  information  only 
with  reference  to  matters  over  which  it  had  legislative 
power,  and  that,  therefore,  it  might  not  punish  for  con- 
tempt a  refusal  to  testify  or  produce  papers  bearing  upon 
other  subjects.  In  this  respect,  being  a  legislature  of 

5  Gompers  v.  Buck  Stove  &  Range  Co.,  221  U.  S.  418;  31  Sup.  Ct. 
Rep.  492;  55  L.  ed.  797. 

6  See  In  re  Nevitt,  117  Fed.  Rep.  448;  3  Op.  Atty.  Gen.  662;  4  Op. 
Atty.  Gen.  458;  Columbia  Law  Review,  III,  45. 

7  6  Wh.  204;  5  L.  ed.  242. 

8 103  U.  S.  168;  26  L.  ed.  377. 
34 


530  PRINCIPLES  OF  THE  CONSTITUTIONAL 

limited  powers,  Congress  could  not  measure  its  powers 
by  those  exercised  by  the  English  Parliament. 

That  Congress  has  the  power  to  punish  its  own  members 
for  disorderly  behavior,  that  it  may  punish  by  imprison- 
ment a  refusal  to  obey  a  rule  made  by  it  for  the  preserva- 
tion of  its  own  order,  and  inflict  penalties  in  order  to 
compel  the  attendance  of  absent  members,  has  not  been 
questioned.  In  the  case  of  Re  Chapman,9  however,  de- 
cided in  1897,  was  raised  the  question  whether  it  had  the 
authority  to  punish  a  refusal  to  testify  before  a  committee 
which  was  inquiring,  not  with  regard  to  proposed  legisla- 
tion, but  with  reference  to  the  truth  of  charges  which  had 
been  made  reflecting  upon  the  integrity  of  certain  of  its 
members.  This  power  the  court  upheld. 

The  court,  furthermore,  held  in  this  case  that  having 
the  power,  Congress  might,  instead  of  or  in  addition  to 
itself  punishing  for  contempt,  provide  by  law  that  a  con- 
tumacious witness  be  indicted  and  punished  in  the  courts 
for  a  misdemeanor. 

With  reference  to  the  authority  of  the  State  legislatures 
to  punish  for  contempt  it  may  be  observed  that  their 
powers  are  much  broader  than  those  of  Congress.  Pos- 
sessing all  powers  not  expressly  or  impliedly  refused  them, 
they  have  a  general  inquisitorial  power  and  a  correspond- 
ing general  authority  to  punish  a  refusal  to  testify  or  to 
produce  papers. 

The  performance  of  administrative  acts  by  the  courts 

Courts  have  no  hesitation  in  performing  ministerial 
acts,  if  such  acts  are  incidental  to  the  exercise  of  their 
proper  judicial  functions.  But  they  will  not  perform 
administrative  acts  not  so  connected.10 

9166U.  S.  661;  17  Sup.  Ct.  Rep.  677;  41  L.  ed.  1154. 

10Hayburn's  Case,  2  Dall.  409;  1  L.  ed.  436;  United  States  v. 
Ferreira,  13  How.  40;  14  L.  ed.  42;  Gordon  v.  United  States,  2  Wall. 
561;  17  L.  ed.  921. 


LAW  OF  THE  UNITED  STATES  531 

judicial  review  of  administrative  determinations 

Though,  as  the  foregoing  cases  show,  the  courts  will 
not  consent  to  exercise  jurisdiction  where  their  decisions 
are  reviewable  by  administrative  officials,  they  have  not 
refused  themselves  to  review  decisions  rendered  in  the 
first  instance  by  executive  organs.  In  all  cases,  they  will, 
of  course,  examine,  by  certiorari  or  otherwise,  whether  a 
given  administrative  act  has  been  legal  in  character,  that 
is,  whether  the  agent  performing  it  has  had  the  necessary 
official  power,  or  whether  "due  process  of  law"  has  been 
provided.  In  addition,  they  have  been  willing,  where 
specific  legislative  authority  has  been  granted  them,  to 
review  administrative  determinations  of  fact,  when  such 
determinations  have  required  the  exercise  of  functions 
essentially  judicial  in  character.11 

Judicial  powers  of  administrative  agents 

From  what  has  gone  before  it  will  have  been  seen  that 
though  the  courts  will  not  perform  administrative  acts, 
there  is  no  constitutional  objection  to  vesting  the  per- 
formance of  acts  essentially  judicial  in  character  in  the 
hands  of  the  executive  or  administrative  agents,  provided 
the  performance  of  these  functions  is  properly  incidental 
to  the  execution  by  the  department  in  question  of  functions 
peculiarly  its  own.  Furthermore,  as  we  shall  later  see, 
there  is,  subject  to  the  same  qualification,  no  objection 
to  rendering  the  administrative  determinations  conclusive, 
that  is,  without  an  appeal  to  the  courts,  provided  in  gen- 
eral the  requirements  of  due  process  of  law  as  regards  the 
right  of  the  person  affected  to  a  hearing,  to  produce  evi- 
dence, etc.,  have  been  met. 

11  United  States  v.  Butterworth,  112  U.  S.  50;  5  Sup.  Ct.  Rep.  25; 
28  L.  ed.  656;  United  States  v.  Duell,  172  U.  S.  576;  19  Sup.  Ct.  Rep. 
286;  43  L.  ed.  559;  Interstate  Commerce  Commission  v.  Brimson, 
154  U.  S.  447;  14  Sup.  Ct.  Rep.  1125;  38  L.  ed.  1047. 


CHAPTER  LIV 

CONCLUSIVENESS  OF  ADMINISTRATIVE  DETERMINATIONS 

Due  process  of  law  does  not  demand  determination  of  rights 

in  courts  of  law 

Due  process  of  law  does  not  require  that  personal  and 
property  rights  shall  in  all  cases  be  finally  determined  in 
courts  of  law.1  As  has  been  more  fully  shown  in  the  chap- 
ter entitled  "Due  Process  of  Law,"  the  prohibition  im- 
posed by  the  Constitution  upon  both  the  national  and 
State  governments  that  life,  liberty  or  property  shall  not 
be  taken  without  "due  process  of  law,"  means  not  so 
much  that  a  specific  mode  of  procedure  shall  be  followed, 
as  that  in  that  procedure  certain  fundamental  principles 
looking  to  the  protection  of  the  individual  against  op- 
pression and  injustice  shall  be  observed.  In  accordance 
with  this  interpretation  it  has  been  held  that  the  deter- 
mination of  facts  upon  which  a  given  right  of  life,  liberty 
or  property  may  depend,  need  not  necessarily  be  placed 
in  the  hands  of  the  courts,  but  may  be  conclusively  deter- 
mined by  executive  agents.  In  Murray's  Lessee  v.  Ho- 
boken  Land  and  Improvement  Company  above  cited,  it 
was  held  tha£  Congress  might  endow  an  administrative 
officer  with  the  power  to  determine  the  amount  due  from 
a  government  officer,  and  to  enforce  its  collection,  with- 
out the  intervention  of  the  courts,  by  a  distress  warrant 


1  Murray  v.  Hoboken  Land  &  Improvement  Co.,  18  How.  272; 
15  L.  ed.  372. 
532 


LAW  OF  THE  UNITED  STATES  533 

issued  by  the  Solicitor  for  the  Treasury.  In  Springer  v. 
United  States  2  a  similar  authority  was  granted  the  execu- 
tive arm  for  the  collection  of  a  tax  from  a  private  citizen, 
the  court  saying:  "The  prompt  payment  of  taxes  is  al- 
ways important  to  the  public  welfare.  It  may  be  vital 
to  the  existence  of  the  government.  The  idea  that  every 
taxpayer  is  entitled  to  the  delays  of  litigation  is  unreason- 
able. If  the  laws  here  in  question  involve  any  wrong  or 
unnecessary  harshness,  it  was  for  Congress,  or  the  people 
who  make  congresses,  to  see  that  the  evil  was  corrected. 
The  remedy  does  not  lie  with  the  judicial  branch  of  the 
government." 

The  same  finality  that  has  been  conceded  to  adminis- 
trative determinations  has  been  predicated  of  the  de- 
cisions of  tribunals  established  under  the  treaty-making 
power.3 

It  will  be  noted  that  in  several  of  the  foregoing  cases 
the  practical  requirements  of  efficient  government  furnish 
the  basis  of  argument.  This  same  justification  is  even 
more  emphasized  in  later  cases,  and,  with  the  continuing 
increase  in  number  and  complexity  of  governmental 
functions,  we  may  confidently  expect  that  the  courts  will 
strengthen  the  hands  of  the  administration  whenever 
possible.  It  is  not  to  be  expected,  however,  that  the 
judiciary  will  ever  resign  the  right  to  determine  whether 
the  facts  administratively  determined  are  such  as  fall 
within  the  field  of  judgment  granted  to  the  administra- 
tive agents  of  the  law,  or  whether,  admitting  the  facts 
to  be  so  determined,  they  furnish  the  authority  for  the 
executive  acts  predicated  upon  them.4 

In  a  series  of  cases,  the  court  has  conceded  to  customs 


2 102  U.  S.  586;  26  L.  ed.  253. 

3  Comegys  v.  Vasse,  1  Pet.  193;  7  L.  ed.  108;  Terlinden  v.  Ames, 
184  U.  S.  270;  22  Sup.  Ct.  Rep.  484;  46  L.  ed.  534. 

4  Smelting  Co.  v.  Kemp,  104  U.  S.  636;  26  L.  ed.  875. 


534  PRINCIPLES  OF  THE  CONSTITUTIONAL 

officers  final  and  conclusive  authority  in  the  matter  of 
appraisement  and  classification  of  imports.5 

Fraud  orders 

In  Public  Clearing  House  v.  Coyne  6  was  sustained  the 
constitutionality  of  a  congressional  delegation  of  authority 
to  the  Postmaster-General  to  determine,  without  the  aid 
of  the  courts,  whether  the  mail  of  a  given  concern  should 
be  excluded  from  the  mails,  because  fraudulent  or  par- 
taking of  the  nature  of  a  lottery. 

Though  the  judgment  of  the  Postmaster-General,  as 
granted  him  by  statute,  has  thus  been  held  to  be  final 
and  conclusive  with  reference  to  the  issuance  of  fraud 
orders,  the  Supreme  Court  held  in  American  School  of 
Magnetic  Healing  v.  McAnnulty  7  that  the  law  required 
that  this  judgment  should  be  one  founded  on  facts  as- 
certained by  evidence,  and  that  it  might  not  be  simply 
the  Postmaster-General's  personal  judgment  as  to  the 
fraudulent  character  of  the  business  whose  mail  is  to  be 
excluded. 

Chinese  exclusion  cases 

In  the  various  Chinese  exclusion  cases  the  same  princi- 
ples as  those  already  laid  down  have  been  applied.  In- 
asmuch, however,  as  their  application  has  involved  ques- 
tions of  personal  liberty  rather  than  property,  their  adoption 
by  the  courts  has  seemed  to  some  oppressive,  and  in  the 
Ju  Toy  case,8  decided  in  1905,  earnest  dissenting  opinions 
are  filed.  In  Chae  Chan  Ping  v.  United  States  9  the  court 

5  Hilton  v.  Merritt,  110  U.  S.  97;  3  Sup.  Ct.  Rep.  548;  28  L.  ed. 
83;  Buttfield  v.  Stranahan,  192  U.  S.  470;  24  Sup.  Ct.  Rep.  349;  48 
L.  ed.  525. 

6 194  U.  S.  497;  24  Sup.  Ct.  Rep.  789;  48  L.  ed.  1092. 

7 187  U.  S.  94;  23  Sup.  Ct.  Rep.  33;  47  L.  ed.  90. 

8  United  States  v.  Ju  Toy,  198  U.  S.  253;  25  Sup.  Ct.  Rep.  644; 
49  L.  ed.  1040. 

9 130  U.  S.  581;  9  Sup.  Ct.  Rep.  623;  32  L.  ed.  1068. 


LAW  OF  THE  UNITED  STATES  535 

held  valid  the  Act  of  1888  prohibiting  Chinese  laborers 
from  entering  the  United  States  who  had  departed  be- 
fore its  passage,  without  certificates  issued  under  the  Act 
of  1882  as  amended  by  the  Act  of  1884  granting  them 
permission  to  return.  This  the  court  did,  even  though 
it  recognized  that  the  Act  of  1888  was  in  contravention 
of  express  stipulations  of  the  Treaties  of  1868  and  1880 
between  the  United  States  and  China.  In  Fong  Yue 
Ting  v.  United  States  10  the  doctrine  was  again  declared 
that  the  provisions  of  an  act  of  Congress  passed  in  the 
exercise  of  its  constitutional  authority  must  be  upheld 
by  the  courts,  even  though  in  contravention  of  an  earlier 
treaty.  The  power  to  exclude  or  expel  aliens  is  held  to 
be  vested  in  the  political  departments  of  the  government, 
and  to  be  executed  by  the  executive  authority  except  so 
far  as  the  judicial  department  has  been  authorized  by 
treaty  or  statute  to  intervene,  or  where  some  provision 
of  the  Constitution  has  been  violated.  Having  this  right, 
the  executive  department,  it  was  held,  might  be  authorized 
to  provide  a  system  of  registration  and  identification  of 
Chinese  laborers,  and  to  require  them  to  obtain  certificates 
of  residence,  and  to  provide  for  the  deportation  of  those 
not  so  obtaining  certificates  within  a  year.  The  pro- 
vision of  the  act  that  the  executive  officer  acting  in  behalf 
of  the  United  States  should  bring  the  Chinese  laborer 
before  a  Federal  court  in  order  that  he  might  be  heard 
and  the  facts  upon  which  depended  his  right  to  remain  in 
the  country  decided,  was  held  valid,  the  duty  so  imposed 
upon  the  court  being  declared  judicial  in  character. 

In  Ekiu  v.  United  States  n  it  was  held  that  in  reaching 
the  determination  whether  an  alien  is  lawfully  entitled 
to  enter  the  country,  it  is  not  necessary  for  the  administra- 
tion to  take  testimony.  The  court,  however,  say:  "An 

10 149  U.  S.  698;  13  Sup.  Ct.  Rep.  1016;  37  L.  ed.  905. 
11 142  U.  S.  651 ;  12  Sup.  Ct.  Rep.  336;  35  L.  ed.  1146. 


536  PRINCIPLES  OF  THE  CONSTITUTIONAL 

alien  immigrant,  prevented  from  landing  by  any  such 
officer  claiming  authority  to  do  so  under  an  Act  of  Con- 
gress, and  thereby  restrained  of  his  liberty,  is  doubtless 
entitled  to  a  writ  of  habeas  corpus  to  ascertain  whether 
the  restraint  is  lawful. " 

Ju  Toy  case 

In  United  States  v.  Sing  Tuck,12  the  contention  was 
made  that  the  question,  whether  or  not  a  person  seeking 
admission  was  an  alien,  necessarily  involved  the  authority 
of  the  immigration  officials  to  act  at  all,  and  that  this 
jurisdictional  question  was  one  which  the  courts  could 
not  refuse  to  pass  upon.  In  this  case  the  Supreme  Court 
avoided  passing  upon  the  point  in  limine,  holding  that  the 
petitioner  could  not  seek  judicial  remedy  until  he  had 
exhausted  (as  he  had  not)  the  administrative  remedies 
given  him  by  statute.  In  United  States  v.  Ju  Toy,13  how- 
ever, the  petitioner  had  carried  his  appeal  to  the  highest 
administrative  official  authorized  by  statute  to  consider 
his  claim,  and  the  Supreme  Court  thereupon  found  itself 
obliged  to  pass  upon  the  main  contention,  which  it  did, 
holding  that  the  administrative  decision  as  to  the  status 
of  the  petitioner,  no  abuse  of  authority  being  prima  fade 
made  out,  was  final  and  conclusive. 

Of  course,  if  the  question  of  alienage  or  citizenship  is 
dependent  upon  a  matter  of  law,  and  not  a  determination 
purely  of  fact,  the  matter  will  be  reviewed  by  the  courts. 
Thus,  for  example,  in  Gonzales  v.  Williams  14  the  court 
determined  in  the  last  instance  whether  or  not  a  native 
of  Porto  Rico  who  was  an  inhabitant  of  the  island  at  the 
time  of  cession  to  the  United  States  was  upon  her  arrival 
at  a  port  of  this  country  to  be  treated  as  an  alien  im- 


12 194  U.  S.  161;  24  Sup.  Ct.  Rep.  621;  48  L.  ed.  917. 
13  198  U.  S.  253;  25  Sup.  Ct.  Rep.  644;  49  L.  ed.  1040. 
14 192  U.  S.  1;  24  Sup.  Ct.  Rep.  171;  48  L.  ed.  317. 


LAW  OF  THE  UNITED  STATES  537 

migrant  within  the  meaning  of  the  Act  of  Congress  of 
1891. 

Constitutional  requirements  of  administrative  determinations 
The  series  of  cases,  culminating  in  that  of  United  States 
v.  Ju  Toy,  considered  in  the  preceding  paragraphs,  are 
to  be  construed  as  determining  simply  that  when,  by 
statute,  the  conclusive  determination  of  facts  has  been 
vested  in  administrative  agents,  a  judicial  review  thereof 
may  not  be  demanded  as  a  constitutional  right.  In  two 
respects,  however,  such  administrative  acts  are,  and  con- 
stitutionally must  be,  reviewable  in  the  courts.  In  the 
first  place,  as  has  already  been  pointed  out,  the  question 
of  the  jurisdiction  of  the  administrative  agents  or  bodies 
to  act  is  always  open  to  judicial  examination.  In  the 
second  place  it  is  always  open  to  the  courts  to  determine 
whether,  in  the  administrative  procedure  which  has  been 
followed,  the  essential  procedural  requirements  of  due 
process  of  law  have  been  present.  As  said  by  the  court 
in  Yamataya  v.  Fisher,15  the  court  "must  not  be  under- 
stood as  holding  that  administrative  officers,  when  execut- 
ing the  provisions  of  a  statute  involving  the  liberty  of 
persons,  may  disregard  the  fundamental  principles  that 
inhere  in  'due  process  of  law'  as  understood  at  the  time 
of  the  adoption  of  the  Constitution." 

In  this  case  it  was  held  that  due  process  was  satisfied 
by  an  informal  notice  to  the  plaintiff  that  an  investigation 
was  to  be  had  to  determine  whether  she  should  be  deported, 
although  it  was  alleged  that,  because  of  her  lack  of  knowl- 
edge of  the  English  language,  she  did  not  understand  the 
import  of  the  questions  propounded  to  her,  and  that,  in 
fact,  she  did  not  know  that  these  questions  related  to  the 
matter  of  her  possible  deportation. 

Where,  from  the  nature  of  the  case,  the  determination 

15 189  U.  S.  86:  23  Sup.  Ct.  Rep.  611;  47  L.  ed.  721. 


538  PRINCIPLES  OF  THU  CONSTITUTIONAL 


of  the  fact  at  issue,  is,  for  example,  the  ascertainment 
of  the  character  of  a  commodity,  which  character  may  be 
ascertained  by  comparing  it  with  an  established  standard, 
it  has  been  held  that  a  hearing  is  not  needed.  And  in 
Ekiu  v.  United  States,  earlier  referred  to,  the  statute  was 
held  not  to  require  inspectors  to  take  testimony,  but  that 
they  might  decide  upon  their  own  inspection,  whether  an 
alien  immigrant  was  entitled  to  enter  the  country.  It 
was,  however,  declared  that  upon  habeas  corpus  the 
question  could  be  determined  by  the  courts  whether  one 
prevented  from  landing  had  had  an  opportunity  to  ascer- 
tain whether  his  detention  was  lawful.16 

Arbitrary  administrative  discretion 

Generally  speaking,  it  may  be  said  that  while  wide 
discretionary  power  may  constitutionally  be  granted  to 
administrative  agents,  that  discretion  must  be  one  which 
is  guided  by  reason,  justice,  and  impartiality,  and  exer- 
cised in  the  execution  of  policies  predetermined  by  legisla- 
tive act,  or  fixed  by  the  common  law. 

In  Yick  Wo  v.  Hopkins  17  the  court  laid  down  the  doc- 
trine that  the  legislative  investment  of  purely  personal 
and  arbitrary  power  in  the  hands  of  any  public  official 
is  a  denial  of  due  process  of  law.  "The  very  idea,"  say 
the  court,  "that  one  man  may  be  compelled  to  hold  his 
life,  or  the  means  of  living,  or  any  material  right  essential 
to  the  enjoyment  of  life,  at  the  mere  will  of  another,  seems 
to  be  intolerable  in  any  country  where  freedom  prevails, 
as  being  the  essence  of  slavery  itself." 

Taken  by  itself  the  language  of  the  court,  as  will  be 
seen  from  the  quotation  which  has  been  made,  indicates 
that  in  no  case  may  an  arbitrary  discretionary  power  be 

16  Cf.  Chin  Low  v.  United  States,  208  U.  S.  8;  28  Sup.  Ct.  Rep. 
201;  52  L.  ed.  369. 

17  118  U.  S.  356;  6  Sup.  Ct.  Rep.  1064;  30  L.  ed.  220. 


LAW  OF  THE  UNITED  STATES  539 

granted  to  a  public  official  which  will  compel  any  person 
"to  hold  his  life,  or  the  means  of  living,  or  any  material 
right  essential  to  the  enjoyment  of  life  at  the  mere  will  of 
another."  The  force  of  this  holding,  is,  however,  some- 
what weakened  by  the  fact  that  the  court  found  that, 
whatever  the  terms  or  intent  of  the  ordinances  in  question, 
they  had  actually  been  administered  in  a  grossly  partial 
and  unjust  manner.  And  also,  and  more  importantly, 
in  the  later  case  of  Wilson  v.  Eureka  City  1S  the  court  ex- 
pressly upheld  the  constitutionality  of  an  ordinance  com- 
mitting the  right  of  the  plaintiff  with  reference  to  the  re- 
moval of  a  building  owned  by  him,  to  the  unrestrained 
discretion  of  a  single  official.  The  summary  of  cases  in 
the  State  courts,  given  by  the  court  in  Re  Flaherty,19  in 
which  unrestrained  discretion  is  sustained,  is  quoted  with 
approval,  the  court  declaring  the  discretionary  power  to 
be  "based  on  the  necessity  of  the  regulation  of  rights  by 
uniform  and  general  laws — a  necessity  which  is  no  better 
observed  by  a  discretion  in  a  board  of  aldermen  or  council 
of  a  city  than  in  a  mayor,  and  the  cases,  therefore,  are 
authority  against  the  contention  of  plaintiff  in  error." 

In  this  case  it  is  certain  that  the  Supreme  Court  com- 
mits itself  to  the  doctrine  that  administrative  officials 
may,  in  certain  cases  at  least,  be  given  a  discretionary 
power  to  act  according  to  their  own  unrestricted  judgment 
as  to  what  the  circumstances  require,  and  that,  therefore, 
an  ordinance  or  a  law  purporting  to  grant  this  authority 
is  not,  upon  its  face,  void. 

It  may  be  predicted,  however,  that  the  grant  of  such 
arbitrary  power  will  not  be  upheld  except  in  those  cases  in 
which  comparatively  unimportant  private  interests  are  in- 
volved, or  where  the  requirements  of  administrative  effi- 

18 173  U.  S.  32;  19  Sup.  Ct.  Rep.  317;  43  L.  ed.  603. 
19  105  Calif.  558.    See  also  Davis  v.  Massachusetts,  167  U.  S.  43; 
17  Sup.  Ct.  Rep.  731;  42  L.  ed.  71. 


540  PRINCIPLES  OF  THE  CONSTITUTIONAL 

ciency  demand  the  existence  of  such  an  authority.  And, 
furthermore,  the  doctrine  of  Yick  Wo  v.  Hopkins  will  of 
course  apply  in  those  cases  in  which  it  is  clearly  shown 
that  in  fact  the  discretionary  power  which  has  been 
granted  has  been  abused  and  oppressively  or  unfairly  ex- 
ercised. 

In  American  School  of  Magnetic  Healings.  Me  Annuity,20 
a  fraud  order  of  the  Postmaster-General  was  held  not 
authorized  by  the  statute  under  which  the  right  to  issue 
the  order  was  claimed,  the  court  holding  that  the  law 
did  not  grant  to  the  Postmaster-General  a  power  to  issue 
fraud  orders  except  in  cases  where  there  was  evidence, 
that  is,  something  more  than  the  individual  opinion  of  the 
Postmaster-General,  to  show  that  the  business  against 
which  the  orders  might  be  issued  is  a  fraudulent  one. 
The  statutory  power  of  Congress,  should  it  see  fit  to  exer- 
cise it,  to  vest  in  the  Postmaster-General  a  general  power 
to  exclude  from  the  use  of  the  mails  those  concerns  which 
in  his  judgment  he  might  deem  to  be  fraudulent  was  thus 
not  involved  or  passed  upon. 

Mandamus 

In  an  earlier  chapter  of  this  treatise  it  has  been  pointed 
out  that  the  courts  will  not  by  mandamus  or  other  writ 
attempt  to  control  the  exercise  by  administrative  or  execu- 
tive agents  of  a  discretion  given  them  by  the  Constitution 
or  statutes.  This,  as  we  have  seen,  excludes  from  the 
field  of  judicial  review  all  those  acts  which,  as  political  in 
character,  are  purely  discretionary.  It  also  excludes  an 
attempt  upon  the  part  of  the  courts  to  control  all  other 
administrative  and  executive  acts  in  so  far  as  there  is 
possessed  by  those  officials  intrusted  with  their  perform- 
ance, a  discretion  as  to  whether  the  acts  shall  be  per- 
formed at  all.  Where,  however,  an  act,  not  purely  politi- 

20 187  U.  S.  94;  23  Sup.  Ct.  Rep.  33;  47  L.  ed.  90. 


LAW  OF  THE  UNITED  STATES  541 

cal  in  character,  is  by  law  required  of  an  officer,  the  per- 
formance of  which  involves  the  exercise  of  a  discretion, 
the  courts  may  require  that  the  discretion  be  exercised 
and  the  act  performed.  Furthermore,  whether  or  not  an 
officer  has  overstepped  the  limits  of  the  discretionary 
powers  granted  him  is  always  a  proper  subject  for  judicial 
determination,  though  not  by  mandamus. 

That  a  mandamus  will  lie  to  compel  the  performance 
of  purely  ministerial  acts,  that  is,  acts  not  involving  the 
exercise  of  political  or  administrative  discretion,  is  a  princi- 
ple that  antedates  the  adoption  of  the  United  States 
Constitution.21 

The  courts  will  not  interfere  by  mandamus  with  ex- 
ecutive officers  of  the  government  in  the  exercise  of  their 
ordinary  official  duties,  even  where  those  duties  require 
an  interpretation  of  the  law.  The  writ  of  mandamus,  in 
other  words,  is  not  to  be  used  as  a  writ  of  error  in  place 
of  an  appeal.  If  there  has  been  a  misinterpretation  of 
the  law  by  the  executive  officer,  the  court,  if  it  has  been 
given  jurisdiction,  will  correct  it  on  appeal,  or  the  person 
who  believes  himself  injured  may  institute  appropriate 
civil  or  criminal  proceedings.22 

When  a  subordinate  administrative  officer  is  overruled 
by  his  superior  who  has  an  appellate  administrative  juris- 
diction over  him,  his  duty  to  obey  is  a  ministerial  one  and 
may  be  compelled  by  mandamus.23  The  Federal  court 
must,  however,  have  been  granted,  by  statute,  the  author- 
ity to  issue  the  mandamus  and,  in  fact,  no  such  general 
authority  has  been  granted  by  Congress  to  the  Federal 


21  Marbury  v.  Madison,  1  Cr.  137;  2  L.  ed.  60. 

22  Riverside  Oil  Co.  v.  Hitchcock,  190  U.  S.  316;  23  Sup.  Ct.  Rep. 
698;  47  L.  ed.  1074;  Bates  &  Guild  Co.  v.  Payne,  194  U.  S.  106;  24 
Sup.  Ct.  Rep.  595;  48  L.  ed.  894. 

23  United  States  v.  Miller,  128  U.  S.  40;  9  Sup.  Ct.  Rep.  12;  32  L. 
ed.  354. 


542  PRINCIPLES  OF  THE  CONSTITUTIONAL 

courts.  It  has,  however,  been  held,  that  the  courts  of 
the  District  of  Columbia,  having  been  granted  general 
common-law  powers,  possess  the  authority.24 

The  amenability  of  the  President  to  compulsory  judicial 
process 

From  the  foregoing  it  has  appeared  that,  for  the  per- 
formance of  a  purely  ministerial  act,  a  mandamus  will 
lie  to  the  heads  of  the  great  departments  of  the  Federal 
Government,  and,  a  fortiori,  to  their  subordinates.  We 
have  now  to  inquire  whether  the  President,  the  chief 
executive  of  the  nation,  is,  with  reference  to  the  per- 
formance of  a  purely  ministerial  act,  similarly  subject  to 
compulsory  judicial  process.  This  question  has  several 
times  been  before  the  courts,  and  though  not  often  passed 
upon  in  limine,  has  been  uniformly  answered  in  the  nega- 
tive. 

As  was  intimated  in  Marbury  v.  Madison,25  a  chief  of 
one  of  the  executive  departments,  when  acting  under  the 
direct  orders  of  the  President,  with  reference  to  a  matter 
which  has,  by  the  Constitution,  been  placed  within  the 
discretionary  or  political  control  of  the  President,  is  not 
amenable  to  the  authority  of  the  courts. 

Obligation  of  the  President  to  enforce  laws  believed  by  him 

to  be  unconstitutional 

That  the  President  has  the  right  to  veto  an  act  of  Con- 
gress because  he  believes  it  to  be  an  unconstitutional 
measure,  even  though  he  thus  substitutes  his  judgment 
as  to  this  for  that  of  Congress,  is  beyond  doubt.  The 
objection  that  has  sometimes  been  made  that  in  so  doing 


24  Kendall  v.  United  States,  12  Pet.  524;  9  L.  ed.  1181. 

25 1  Cr.  137;  2  L.  ed.  60.  See,  also,  Burr's  Trial,  passim;  Mis- 
sissippi v.  Johnson,  4  Wall.  475;  18  L.  ed.  437;  Georgia  v.  Stanton, 
6  Wall.  50;  18  L.  ed.  721. 


LAW  OF  THE  UNITED  STATES  543 

the  President  arrogates  to  himself  a  judicial  function  is 
without  weight. 

In  placing  a  veto  upon  a  congressional  enactment,  the 
President  is  exercising,  not  a  judicial,  but  a  legislative 
function.  His  veto  is  of  the  nature  of  a  powerful  vote, 
and  his  decision  as  to  the  way  his  vote  is  to  be  cast  must 
be  based  upon  his  own  views  and  opinions.  The  Consti- 
tution gives  him  the  power  and  he  has  the  right  to  use 
it;  indeed,  it  is  his  duty  to  use  it.  He  has  the  right  to  use 
his  veto  upon  the  ground  of  unconstitutionality  even  when 
a  measure  of  similar  character  has  received  previous  in- 
terpretation by  the  Supreme  Court,  and  has  been  sus- 
tained. His  constitutional  right  or  even  duty  of  thus 
using  his  veto  power  has  not  been  impaired  by  the  manner 
in  which  any  previous  act  has  been  treated.  In  1832 
Jackson  vetoed  the  bill  providing  for  a  recharter  of  the 
National  Bank.  This  he  did  mainly  on  the  ground  of  its 
unconstitutionality,  notwithstanding  the  fact  that  in  the 
case  of  McCulloch  v.  Maryland  this  institution  had  been 
carefully  examined  by  the  Supreme  Court  and  pronounced 
constitutional. 

Whether  the  President  has  the  right  to  refuse  to  execute 
a  law,  passed  during  the  term  of  a  predecessor,  or  over  his 
veto,  because  he  deems  it  unconstitutional,  is  an  entirely 
different  question  from  that  just  considered.  Here  the 
President  has  to  deal  not  with  a  measure  in  the  process  of 
enactment,  as  is  the  case  when  the  veto  is  exercised,  but 
with  a  bill  that  has  passed  through  all  the  constitutional 
forms  of  enactment,  and  has  become  a  law,  and  it  would 
seem  that  he  has  no  option  but  to  enforce  the  measure. 
The  President  has  not  been  given  the  power  to  defeat  the 
will  of  the  people  or  of  the  legislature  as  embodied  in  law. 

That  the  President  and  all  other  officers  of  the  govern- 
ment have  not  the  right  to  refuse  obedience  to  a  judgment 
of  the  Supreme  Court,  because  he  or  they  believe  such 


544  PRINCIPLES  OF  THE  CONSTITUTIONAL 

judgment  to  be  based  upon  an  incorrect  interpretation 
of  the  Constitution,  scarcely  needs  argument.  This  case 
is  stronger  than  the  former  one  by  reason  of  the  additional 
support  of  the  judiciary.  To  refuse  now  to  execute  the 
command  of  the  court  is  to  assume  the  judicial  power  of  a 
court  of  appeals  as  well  as  legislative  functions. 

Liability  of  the  State  for  the  acts  of  its  officers 

The  doctrine  of  the  non-suability  of  the  State  prevents 
the  prosecution  of  a  claim  against  the  United  States, 
or  a  State  of  the  Union,  whether  that  claim  be  founded 
upon  a  tort  of  one  of  its  agents,  or  be  one  arising  out  of 
a  contract.26 

Legal  liability  of  public  officials  to  private  individuals  injured 
by  their  acts— ultra  vires  acts 

As  has  elsewhere  been  shown  in  this  treatise,  a  funda- 
mental principle  of  American  law  is  that  the  legality  of 
acts  of  public  officers  is  determined  in  the  ordinary  courts 
according  to  the  same  rules  that  govern  the  decision  of 
suits  between  private  individuals.  Thus,  generally 
speaking,  no  officer  can  defend  an  ultra  vires  or  otherwise 
illegal  act  by  setting  up  his  official  position  or  exhibiting 
the  command  of  a  political  superior.  This 'last  statement 
as  to  the  non-applicability  of  the  principle  of  respondeat 
superior  is,  however,  subject  to  this  qualification,  that  the 
order  of  an  administrative  superior,  prima  facie  legal, 
though  in  fact  not  legal,  may  be  set  up  in  defense  of  an 
act  commanded  by  military  superiors.27 

The  result  of  the  doctrine  last  stated  is,  as  will  be  seen, 
that  an  act  is  defended  for  the  performance  of  which  in 
fact  no  legal  authority  can  be  produced.  Simply  the  color 


26  Dooley  v.  United  States,  182  U.  S.  222;  21  Sup.  Ct.  Rep.  762; 
45  L.  ed.  1074,  and  authorities  there  cited. 

27  In  re  Fair,  100  Fed.  Rep.  149. 


LAW  OF  THE  UNITED  STATES  545 

of  authority  on  the  part  of  the  superior  giving  the  com- 
mand is  held  a  sufficient  defense.  Clearly  common  justice, 
and  the  practical  necessities  of  administration  justify  the 
rule,  yet,  inasmuch  as  it  does  in  fact  protect  an  act  es- 
sentially illegal,  the  doctrine  is  one  that  is  kept  within  the 
narrowest  possible  bounds.  Only  where  there  is  present 
no  fact  which  would  put  the  subordinate,  as  a  man  of 
ordinary  intelligence,  upon  his  guard,  or  where  the  practi- 
cal necessities  of  the  case  leave  little  or  no  opportunity 
for  individual  judgment  in  the  matter,  should  the  rule  be 
applied.  In  all  other  cases,  it  is  to  be  repeated,  the  pub- 
lic official  is  able  to  defend  his  act  only  by  showing  some 
existing  legal  authority  for  it. 

The  necessities  of  the  case  require  the  foregoing  doc- 
trine, with  reference  to  the  military  arm  of  the  govern- 
ment. There  not  being  the  same  urgency  for  immediate 
obedience  the  doctrine  does  not  prevail  in  civil  mat- 
ters.28 

Responsibility  of  officers  for  improper  exercise  of  authority  — 
malice,  etc. 

Thus  far  we  have  been  considering  the  criminal  and 
civil  responsibility  of  public  officers  for  ultra  vires  and  other- 
wise illegal  acts.  We  have  now  to  consider  their  responsi- 
bility to  private  individuals  for  acts  committed  by  them 
within  the  general  scope  of  their  respective  authorities, 
but  characterized  by  undue  severity,  discrimination,  or 
malice. 

In  general  no  officer  is  held  responsible  in  damages  to 
an  individual  for  non-performance  or  negligent  perform- 
ance of  duties  of  a  purely  public  or  political  character. 

"In  order  to  be  made  the  basis  of  a  claim  for  damages, 
the  duty,  the  neglect  of  which  has  caused  the  damage, 
must  be  one  which  the  individual  suffering  the  damage 

28  Hendricks  v.  Gonzalcs,  67  Fed.  Rep.  351. 
35 


546  PRINCIPLES  OF  CONSTITUTIONAL  LAW 

has  the  right,  not  as  a  part  of  the  public,  but  as  an  in- 
dividual to  have  performed." 

So  long  as  public  officers  act  within  the  general  sphere 
of  their  authority,  their  legal  responsibility  to  private 
individuals  for  the  manner  in  which  they  act,  whether 
their  acts  be  dictated  by  malice,  or  characterized  by  negli- 
gence, is  very  slight. 

Responsibility  of  judges  of  courts  of  superior  or  general  ju- 
risdiction 

That  judges  of  courts  of  superior  or  general  jurisdiction 
are  not  civilly  liable  for  judicial  acts,  even  though  ma- 
liciously or  corruptly  done,  has  already  been  indicated, 
the  cases  in  point  being  reviewed  by  the  court  in  Spald- 
ing  v.  Vilas.30  This  is  true  even  when  the  acts  done  are 
in  excess  of  their  jurisdiction,  provided  it  appear  that  this 
want  of  jurisdiction  is  not  clear  and  unmistakable.  Where 
however,  authority  is  clearly  usurped,  action  will  lie.31 

29  Goodnow,  American  Administrative  Law,  402;  Spalding  v.  Vilas, 
161  U.  S.  483;  16  Sup.  Ct.  Rep.  631;  40  L.  ed.  780;  Kendall  v.  Stokes, 
3  How.  87;  11  L.  ed.  506. 

30161  U.  S.  483;  16  Sup.  Ct.  Rep.  631;  40  L.  ed.  780. 

31  Bradley  v.  Fisher,  13  Wall.  335;  20  L.  ed.  646. 


CHAPTER  LV 

THE    DELEGATION    OF    LEGISLATIVE    POWER 

Delegated  power  may  not  be  delegated 

"One  of  the  settled  maxims  in  constitutional  law  is 
that  the  power  conferred  upon  the  legislature  to  make 
laws  cannot  be  delegated  by  that  department  to  any  other 
body  or  authority.  Where  the  sovereign  power  of  the 
State  has  located  the  authority,  there  it  must  remain, 
and  by  that  constitutional  agency  alone  the  laws  must 
be  made  until  the  Constitution  itself  is  changed.  The 
power  to  whose  judgment,  wisdom  and  patriotism  this 
high  prerogative  has  been  entrusted  cannot  relieve  it- 
self of  the  responsibility  by  choosing  other  agencies  upon 
which  the  power  shall  be  devolved,  nor  can  it  substitute 
the  judgment,  wisdom  and  patriotism  of  any  other  body 
for  those  to  which  alone  the  people  have  seen  fit  to  confide 
this  sovereign  trust."1 

The  principle  as  thus  absolutely  stated  is  subject  to  one 
important  exception,  and  to  several  qualifications,  or  at 
least  explanations. 

Local  governing  powers  may  be  delegated 

The  exception  is  with  reference  to  the  delegation  of 
powers  to  local  governments.  The  courts  have  held,  as 
to  this,  that  the  giving  by  the  central  legislative  body  of 
extensive  law-making  powers  with  reference  to  local 
matters  to  subordinate  governing  bodies  being  an  Anglo- 


1  Cooley,  Constitutional  Limitations,  7th  ed.,  163. 

547 


548  PRINCIPLES  OF  THE  CONSTITUTIONAL 

Saxon  practice,  antedating  the  adoption  of  the  Constitu- 
tion, and  the  right  of  local  self-government  being  funda- 
mental to  our  system  of  politics,  our  Constitutions  are, 
in  the  absence  of  any  express  prohibitions  to  the  contrary, 
to  be  construed  as  permitting  it. 

Power  to  issue  administrative  ordinances  may  be  delegated 
The  qualifications  to  the  rule  prohibiting  the  delegation 
of  legislative  power  are  those  which  provide  that  while  the 
real  law-making  power  may  not  be  delegated,  a  discre- 
tionary authority  may  be  granted  to  executive  and  ad- 
ministrative authorities:  (1)  To  determine  when  and  how 
the  powers  conferred  are  to  be  exercised ;  and  (2)  to  estab- 
lish administrative  rules  and  regulations,  binding  both 
upon  their  subordinates  and  upon  the  public,  fixing  in 
detail  the  manner  in  which  the  requirements  of  the  stat- 
utes are  to  be  met,  and  the  rights  therein  created  to  be 
enjoyed. 

The  principle  which  permits  the  legislature  to  provide 
that  the  administrative  agents  may  determine  when  the 
circumstances  are  such  as  require  the  application  of  a  law 
is  defended  upon  the  ground  that  at  the  time  this  authority 
is  granted,  the  rule  of  public  policy,  which  is  the  essence 
of  the  legislative  act,  is  determined  by  the  legislature. 
In  other  words,  the  legislature,  as  it  is  its  duty  to  do,  de- 
termines that,  under  given  circumstances,  certain  execu- 
tive or  administrative  action  is  to  be  taken,  and  that 
under  other  circumstances,  different  or  no  action  at  all 
is  to  be  taken.  What  is  thus  left  to  the  administrative 
official  is  not  the  legislative  determination  of  what  pub- 
lic policy  demands,  but  simply  the  ascertainment  of  what 
the  facts  of  the  case  require  to  be  done  according  to  the 
terms  of  the  law  as  legislatively  declared. 

The  doctrine  thus  declared  is  without  objection  so  long 
as  the  facts  which  are  to  determine  the  executive  acts  are 


LAW  OF  THE  UNITED  STATES  549 

such  as  may  be  precisely  stated  by  the  legislature  and 
certainly  ascertained  by  the  executive.  When  this  is 
not  so  the  officer  entrusted  with  the  execution  of  the  law 
is  necessarily  vested  with  an  independent  judgment  as  to 
when  and  how  the  law  shall  be  executed;  and  when  this 
independence  of  judgment  is  considerable  there  is  ground 
for  holding  that  the  law  is  not  simply  one  in  presenti  to 
take  effect  in  futuro,  but  is  a  delegation  by  the  law-making 
body  of  its  legislative  discretion.2 

The  question  when  an  administrative  discretion  is  so 
broad  as  to  amount  to  a  legislative  power  is  not  one  that 
may  be  solved  according  to  any  fixed  formula,  but  one 
that  has  to  be  answered  in  each  individual  case  according 
to  the  judgment  of  the  court.3 

Delegation  of  rate-making  powers 

That  the  fixing  of  the  rates  or  charges  that  may  be  col- 
lected by  public  service  corporations  for  the  services 
rendered  by  them  is,  primarily  at  least,  a  legislative 
function,  is  so  well  established  that  the  citation  of  author- 
ities is  scarcely  necessary.4  Indeed,  it  was  originally 
held  in  Munn  v.  Illinois  5  that  this  power  was  so  exclusively 
legislative  that  the  validity  of  laws  in  regulation  of  busi- 
nesses affected  with  a  public  interest  could  not  be  ques- 
tioned by  the  courts  under  the  due  process  of  law  clauses 
of  the  Constitution. 

In  the  States  the  delegation  by  the  legislative  body  to 


2  The  leading  case  is  Field  v.  Clark,  143  U.  S.  649;  12  Sup.  Ct.  Rep. 
495;  36  L.  ed.  294. 

3  See  Buttfield  v.  Stranahan,  192  U.  S.  470;  24  Sup.  Ct.  Rep.  349; 
48  L.  ed.  525;  Union  Bridge  Co.  v.  United  States,  204  U.  S.  364;  27 
Sup.  Ct.  Rep.  367;  51  L.  ed.  523;  St.  L.,  I.  M.  &  S.  Ry.  Co.  v.  Taylor, 
210  U.  S.  281;  28  Sup.  Ct.  Rep.  616;  52  L.  ed.  1061. 

4  For  citation  of  cases  see  Atlantic  C.  L.  R.  Co.  v.  N.  Carolina 
Corp.  Com.,  206  U.  S.  1;  27  Sup.  Ct.  Rep.  585;  51  L.  ed.  933. 

594U.  S.  113;  24  L.  ed.  77. 


550  PRINCIPLES  OF  THE  CONSTITUTIONAL 

commissions  or  other  boards  of  authority  to  fix  rates  has 
been  generally  sustained  where  by  law  general  principles 
have  been  established  for  the  guidance  and  control  of 
these  administrative  bodies  in  the  exercise,  in  specific 
instances,  of  their  rate-making  powers. 

In  a  number  of  instances  these  laws  have  come  before 
the  Supreme  Court  of  the  United  States,  but  not  in  such  a 
way  as  to  compel  the  court  to  pronounce  squarely  upon 
their  constitutionality  as  tested  by  the  principle  that 
legislative*power  may  not  be  delegated  by  the  law-making 
body  to  an  administrative  board  or  commission,  for  this 
is  a  question  of  State  constitutional  law  with  which  the 
Federal  courts  have  no  concern.  It  is  only  when  the 
allegation  is  made  that  when  the  rates  as  fixed,  whether 
directly  by  the  legislature  or  by  another  authority,  are 
confiscatory,  and,  therefore,  operate  to  deprive  either  the 
railway  or  the  shipper  of  property  without  due  process  of 
law,  that  a  Federal  question  is  raised. 

That  a  considerable  amount  of  regulative  control  over 
railways  may  constitutionally  be  delegated  to  the  Inter- 
state Commerce  Commission  has  not  been  disputed. 
It  was  not  until  the  act  of  1906,  however,  that  that  body 
was  intrusted  by  Congress  with  the  authority  to  fix  in 
specific  instances  the  rates  that  interstate  railways  might 
charge.  By  that  law  it  is  provided  that  the  rates  which 
these  companies  may  legally  fix,  or  which  may  be  fixed 
for  them  by  the  Commission,  must  be  "just  and  reason- 
able." This  is,  practically,  the  only  principle  legislatively 
laid  down  for  the  guidance  and  control  of  the  Commission. 
The  constitutionality  of  this  feature  of  the  law  has,  how- 
ever, not  been  questioned  by  the  Supreme  Court.6 

The  referendum  as  a  delegation  of  legislative  power 

As  to  whether  the  so-called  "referendum"  employed 

6  Int.  Com.  Com.  v.  N.  P.  R.  Co.,  216  U.  S.  538;  30  Sup.  Ct.  Rep. 


LAW  OF  THE  UNITED  STATES  551 

in  some  of  the  States  is  an  unconstitutional  delegation 
by  the  legislature  of  law-making  powers  to  the  people, 
there  is  a  conflict  of  authorities.  The  weight  of  authority 
would,  however,  seem  to  be  against  the  validity,  apart 
from  express  constitutional  authorization,  of  the  submis- 
sion to  the  electorate  of  the  entire  State  of  the  question 
whether  a  measure  shall  or  shall  not  become  a  law. 

Administrative  prdinances 

The  authority  that  administrative  agents  may  con- 
stitutionally exercise  in  the  promulgation  of  rules  and 
ordinances  regulating  in  detail  the  execution  of  the  laws 
the  enforcement  of  which  has  been  placed  in  their  hands, 
and  the  legal  force  to  be  given  to  those  rules  thus  ad- 
ministratively established,  is  a  subject  that  has  given  rise 
to  many  adjudications.  These  rules,  it  is  to  be  observed, 
fall  into  two  general  classes.  First,  those  established  by 
an  administrative  superior  and  directed  solely  to  the  ad- 
ministrative inferior;  secondly,  those  binding  of  course 
the  administrative  inferiors,  but  primarily  directed  to  the 
private  citizen,  and  fixing  the  manner  in  which  the  re- 
quirements of  the  statute  are  to  be  met  by  him.  This 
second  class  of  rules  is,  in  turn,  divisible  into  two  classes; 
those  to  which  a  criminal  penalty  is  attached  for  their 
violation,  and  those  merely  defining  the  manner  in  which 
rights  created  by  the  statute  are  to  be  enjoyed. 

The  first  of  these  two  main  classes  of  administrative 
ordinances  differ  from  those  of  the  second  class  in  that 
though  valid  as  between  the  administrative  superior  and 
his  inferior,  they  do  not  create  legal  rights  which  may 
be  enforced  in  the  courts.  Of  this  class,  for  example,  are 
certain  of  the  civil  service  regulations  which  the  Presi- 
dents of  the  United  States  have  issued  under  authority  of 

417;  54  L.  ed.  608;  Int.  Com.  Com.  v.  C.  R.  I.  &  P.  R.  Co.,  218 
U.  S.  88;  30  Sup.  Ct.  Rep.  651;  54  L.  ed.  946. 


552  PRINCIPLES  OF  THE  CONSTITUTIONAL 

the  Civil  Service  Acts,  fixing  the  classes  to  be  included  in 
the  "  classified  service,"  providing  for  examinations  for 
admission  to  the  service,  and  declaring  the  conditions 
under  which  promotions  and  removals  may  be  made. 

As  to  those  rules  or  ordinances,  established  by  executive 
agents,  providing  the  modes  under  which  private  persons 
may  receive  the  privileges  granted  by  law  or  be  held  re- 
sponsible for  violations  of  the  duties  imposed  therein, 
it  may  in  general  be  said  that  the  executive  may  estab- 
lish all  special  regulations  that  fall  within  the  general 
field  of  the  authority  granted  by  law,  and  which  are 
reasonably  calculated  to  secure  the  execution  of  the  legis- 
lative will  as  laid  down  in  the  statutes. 

With  reference  to  many  of  the  Army  and  Navy  Regu- 
lations issued  by  the  President  it  is  to  be  observed  that 
these  derive  their  force  not  from  congressional  authoriza- 
tion, but  directly  from  the  constitutional  power  of  the 
President  as  Commander-in-Chief  of  the  army  and  navy; 
and  this,  too,  notwithstanding  the  constitutional  pro- 
vision that  Congress  may  make  rules  for  the  government 
and  regulation  of  the  land  and  naval  forces.7 

An  administrative  officer  in  the  execution  of  his  duties 
may  not  change  the  express  provisions  of  the  law,  even 
though  these  provisions  no  longer  seem  the  best  adapted 
to  secure  the  end  desired  by  Congress.8 

Penal  ordinances 

The  courts  scrutinize  with  especial  care  those  cases  in 
which  a  criminal  action  is  based  upon  a  violation  of  an 
administrative  order.  It  is  not  questioned  that  the  legis- 
lature may  attach  a  criminal  liability  to  the  violation  of 
an  administrative  order,  but  in  each  case  it  must  clearly 


7  United  States  v.  Eliason,  16  Pet.  291;  10  L.  ed.  968. 

8  Merritt  v.  Welsh,  104  U.  S.  694;  26  L.  ed.  896;  Merrill  v.  Jones, 
106  U.  S.  466;  1  Sup.  Ct.  Rep.  423;  27  L.  ed.  267. 


LAW  OF  THE  UNITED  STATES  553 

appear  that  the  order  is  one  which  falls  within  the  scope 
of  the  authority  conferred.  Thus,  while  there  are  many 
cases  in  which  it  has  been  held  that  the  delegation  of  an 
ordinance-making  power  to  the  executive  is  not  a  delega- 
tion of  legislative  power,  there  are  comparatively  few 
cases  in  which  has  been  sustained  the  right  of  an  adminis- 
trative officer  to  establish  an  ordinance  the  violation  of 
which  will  be  punished  criminally.9 

By  the  Railway  Rate  Law  of  1906  the  Interstate  Com- 
merce Commission  is  authorized  to  issue  various  orders 
with  reference  to  the  conduct  of  their  business  by  inter- 
state carriers,  and  provision  is  made  that  violation  of  these 
orders  shall  be  punishable  by  fines  and  forfeitures  which 
may  be  recovered  in  civil  suits  in  the  name  of  the  United 
States. 


9  United  States  v.  Maid,  116  Fed.  Rep.  650;  United  States  v.  Eaton, 
144  II.  S.  677;  12  Sup.  Ct.  Rep.  764;  36  L.  ed.  591;  United  States  v. 
Bailey,  9  Pet.  238;  9  L.  ed.  113;  Ex  parte  Kollock,  165  U.  S.  526;  17 
Sup.  Ct.  Rep.  444;  41  L.  ed.  813. 


INDEX 


Acquisition  of  Territory 

power  of  United  States,   120 

et  seq. 
Actions 

in  rem  and  in  personam,  79 
Administrative  Acts 

power  of  courts  to  perform, 
530 

judicial  review  of,  531 
Administrative  Agents 

judicial  powers  of,  531 
Administrative  Decentralization 

of  the  States,  481 
Administrative  Determinations 

conclusiveness  of,  532  &  seq. 

fraud  orders,  534 

Chinese  exclusion,  534 

arbitrary  discretion,  538 
Administrative  Functions 

courts  will  not  exercise,  437 
Administrative  Ordinances 

power  to  issue,  548,  552 

fixing  rates,  549 

penal,  553 
Administrative  Power 

of  the  President,  478  et  seq. 
Admiralty  Jurisdiction 

defined,  461 

navigability  the  test,  462 

canals,  463 

does  not  include  general  po- 
litical jurisdiction,  463 


courts  of,  464 

legislative  powers  with  refer- 
ence to,  465 
Admission 

of  States  to  the  Union,  117 
Agreements 

international,     not    requiring 
submission   to  the   Senate, 
161 
Alaska 

status  of,  148 
Aliens 

status  of,  95 
exclusion    and    expulsion    of, 

97 

protection  of  person  and  prop- 
erty of,  98 
treaty  rights  of,  to  hold  land, 

174 
Alliances 

between  the  States,  92 
•<  Amendment 

of  the  Constitution,  177  et  seq. 
approval  of  President  not  nec- 
essary, 178 
American  Tobacco  Case 

doctrine  of,  285 
Amnesty 

acts  of,  by  Congress,  484 
Annexation  of  Territory 

power  of  the  United  States, 

120  et  seq. 

right  of,  based  on  treaty  and 
war  making  powers,  122 

555 


'556 


INDEX 


Guano    Islands    annexed    by 
statute,  124 

modes  in  which  effected,  125 

not  effected  by  conquest,  134 

by  treaty,  137  et  seq. 
Anti-Trust  Act 

decisions  under,  267 
Appointing  Power 

constitutional  provisions,  485 

officer  denned,  485 

inferior  officers,  486 

nominations,  487 

civil  service  requirements,  488 

removals,  489 
Apportionment 

of  members  of  Congress,  186 

et  seq. 
Appraisement 

see  "Taxes"  and  '"Taxation" 
Appropriations 

power  of  Congress  to  make, 

215,  311 
Arbitrary  Discretion 

power  to  grant,  538 

mandamus,  540 
Arrest 

freedom  of  congressmen  from, 

184 
Articles  of  War 

denned,  493 
Assembly 

right  of,  328 
Attainder 

bills  of,  309 
Autonomy 

of  the  States,  58  , 


Banking 

bills  of  exchange  not  articles 
of  commerce,  233 


Bankruptcy 

denned,  294 

States  have  concurrent  power, 
295 

their  laws   without   extrater- 
ritorial force,  296 

may  not  be  retroactive,  296 

suspended  by  federal  law,  297 
Banks,  National 

state  taxation  of,  370,  374,  376 
Beef  Trust  Case 

doctrine  of,  284 
Belligerency 

recognition  of  status  of,  159 

existence  of,  a  political  ques- 
tion, 435 
Bills  of  Attainder 

denned,  309 
Bills  of  Credit 

defined,  228,  347  et  seq. 
Bills  of  Exchange 

not  articles  of  commerce,  233 
Bonds 

taxation  of,  390 
Borrowing  Power 

of  United  States,  228 
Bounties 

constitutionality  of,  220 
Bridges 

state  authority  over,  241 


California 

annexation  of,  138 
Canals 
admiralty    jurisdiction    over, 

463 

Capital  Stock 

'  of  interstate  carrier  com- 
panies, state  taxation  of, 
263 


INDEX 


557 


Captures 

on  land  and  water,  306 
Carmack  Amendment 

provisions  of,  285  note 
Carriages 

tax  on,  not  direct,  222 
Carrier  Companies 

state  regulation  of,  263 

common-law    obligations    of, 
264 

regulation  of  rates  of,  264 
Certiorari 

may  not  be  issued  by  State  to 

federal  courts,  425 
Child  Labor 

and  interstate  commerce,  273 
Chinese 

exclusion  of,  97,  155  note,  534 

cases  on,  534 
Circuit  Courts  of  Appeals 

organization  of,  398 

appeals    from,     to    Supreme 
Court,  402 

jurisdiction  of,  405 
Circulating  Notes 

tax  on,  not  direct,  222 
Citizenship 

defined,  99 

state  and  federal  distinguished, 
99 

Slaughter  House  Cases,  101 

Wong  Kim  Ark  Case,  102 

double  citizenship,  106 

in  the  territories,  150  et  seq. 

see     "  Diversity    of    Citizen- 
ship";     "  Expatriation ' ' ; 
' '  Indians  " ;       "  Naturaliza- 
tion" 
Civil  Rights  Act 

unconstitutionality  of,  73 
Civil  Rights  Cases,  73 
Civil  Service 


constitutionality    of    require- 
ments of,  488 
Claims 

against  foreign  States,  162 
Claims,  Courts  of 

organization  of,  399 

jurisdiction  of,  407 
Classifications 

when  permitted,  353 
Coinage 

constitutional  provision,  298 
Comity 

interstate,  83  et  seq. 

political  privileges,  84 

state  proprietary  rights,  84 

as  to  non-residents,  84 

corporations  not  citizens  with- 
in meaning  of  the  Comity 
Clause,  85 
Commander-in-Chief 

powers  of,  498 
Commerce 

see  "Interstate  Commerce"; 

"Foreign  Commerce" 
Commerce  Court 

organization  of,  399 

jurisdiction  of,  411 
Commodities  Clause 

act  of  1906,  271 
Common  Law 

obligations  of,  upon  interstate 
carriers,  264 

in  federal  courts,  445 

interstate      commerce      and, 

446 
Compacts 

between     the     States,    92   et 
seq. 

between  the  States  and  the 

United  States,  93 
Concurrent  Federal  Powers 

defined,  57 


558 


INDEX 


Confederacy 

and     federal     State     distin- 
guished, 6 
Confederations 

of  the  States,  92 
Conflict  of  Laws 

as  applied  to  the  States,  76 
Congress 

legislative  power  under  Four- 
teenth Amendment,  73 
legislative      powers      derived 

from  treaty-making  power, 

174 

its  organization,  180  et  seq. 
qualifications  of  members  of, 

180 
determined  by  the  respective 

houses,  181 
power  of,  to  compel  testimony 

and   punish   for   contempt, 

183 
disqualification  of  members  of, 

to  hold  federal  office,  183 
privileges  of  members  of,  184 
election  of  members  of,  186  et 

seq. 
apportionment    of    members, 

188 

congressional  districts,  188 
process  of  legislation  in,  199  et 

seq. 

quorum,  199 

rules  of  procedure,  199,  201 
conclusiveness   of   records    of 

proceedings  of,  200 
revenue  measures  in,  202 
general  power  of,  205 
members  of,  not  impeachable, 

467 
power  of,  to  punish  contempts, 

529 
constitutionality   of   acts   of, 


see  "Unconstitutional  Leg- 
islation" 
Congressional  Governments 

in  the  territories,  128 
Conquest 

does  not  annex  territory,  134 
Constitution 

rules   governing   construction 

of,  29  et  seq. 

to  be  construed  as  a  whole,  39 
applicability    of,    to    modern 

conditions,  41 
double  province  of,  in  United 

States,  47 

Constitutional  Conventions 
interpretative  value  of  debates 

in,  35 

Constitutional  Law 
defined,  8  et  seq. 
American  doctrine  of  suprem- 
acy of,  12 
Construction 

constitutional,    principles    of, 

29  et  seq. 

of  federal  powers,  49 
Constructive  Service 

in  actions  in  rem  and  in  per- 

sonam,  79 

in  divorce  proceedings,  80  et  seq. 
Contempts 

power  of  Houses  of  Congress 

to  punish  for,  183 
legislative   control   of   courts' 

power  to  punish,  527 
j  President's  power  to  pardon, 

528 

congressional  power  as  to,  529 
Contracts 

see  "Obligation  of  Contracts" 
Convenience,  Public 

a  matter  of  police  regulation, 
246 


INDEX 


559 


Conventions 

constitutional,    interpretative 

value  of  debates  in,  35 
Copyrights 

constitutional  provision,  304 
Corporations 

not  citizens  within  meaning  of 

the  Comity  Clause,  85 
foreign,  engaged  in  interstate 
commerce,  state  control  of, 
252 

federal  control  of,   when  en- 
gaged   in    interstate    com- 
merce, 286 
citizenship  of,  412 
federally  chartered,  413 
national  banks,  413 
Corporation  Tax 

federal  law  of  1909,  225 
Correspondence 

international,  in  hands  of  the 

President,  161 
Correspondence  Schools 

in  interstate  commerce,  235 
Counterfeiting 

power  of  United  States  and  of 

the  States  to  punish,  299 
Court  of  Customs  Appeals 
organization  of,  398 
jurisdiction  of,  410 
Courts 

power  of,  over  legislation,  12 

et  seq. 
nature  and  expediency  of  the 

power,  17 
rules  governing  constitutional 

construction  by,  29  et  seq. 
performance  of  administrative 

acts  by,  530 

review  by,  of  judicial  deter- 
minations, 531 
see  "Judiciary" 


Courts,  Federal 

inferior,  397 

supreme  court,  397 

circuit  courts  of  appeal,  398 

district  courts,  398 

customs  appeals,  398 

commerce  court,  399 

court  of  claims,  399 

jurisdiction  of,  based  on  di- 
versity of  citizenship,  411  et 
seq. 

citizenship  of  corporations, 
412 

jurisdiction  of  cases  arising 
under  Constitution,  treaties 
and  statutes,  414 

removal  to,  of  suits  in  state 
courts,  415  et  seq. 

certiorari  by,  425 

injunctions  to  state  courts, 
426 

state  restrictions  upon  right  of 
removal  to,  428  et  seq. 

political  questions  in,  434  et 
seq. 

international  law  in,  439 

state  law  in,  441 

rules  of  evidence  and  pro- 
cedure, 443 

common  law  in,  445 

general  commercial  law,  447 

admiralty,  464 

legislative  control  over,  525 

responsibility  for  acts  of,  546 
Courts-Martial 

power  of,  495  et  seq. 
Credit 

bills  of,  228 
Credits 

taxation  of,  392 

Criminal    Judgments    and    De- 
crees 


560 


INDEX 


full  faith  and  credit  clause  not 

applicable  to,  77 
Criminal  Jurisdiction 

of  the  United  States,  324 
Criminal  Law 

federal,  440 

general,  in  federal  courts,  447 
Cruel  and  Unusual  Punishments 

discussed,  321 
Cuba 

administration  of,  by  United 
States,  140 

military  occupation  of,  436 
Currency 

see  "Bills  of  Credit";  "Legal 

Tender" 
Customs 

collection  of,  226 


Dartmouth  College  Case 

doctrine  of,  360 
Debates 

in  constitutional  conventions, 
interpretative  value  of,  35 

legislative,  38 
Debts 

taxation  of,  391 
Declaration  of  War 

power  to  issue,  499 

see  "War" 
Declaratory  Legislation 

constitutionality  of,  525 
De  Facto  Governments 

status  of,  134 
Delegated  Powers 

distinguished   from   reserved, 

48 
Delegation  of  Power 

principle  governing,  547  et  seq. 

see  "Legislative  Power" 


Denunciation 

of  treaties,  175 
Direct  Taxes 

constitutional    definition    of, 

222  et  seq. 
Disfranchisement 

in  the  Southern  States,  194 
District  of  Columbia 

full  faith  and  credit  clause  not 
applicable  to,  77 

inhabitants  of,  not  citizens  of  a 
State,  102 

government  of,  130 

not  a  State,  170 

exclusive     legislative     power 
over,  is  in  Congress,  131 

commerce  with,  292 

judiciary  of,  399 
District  Courts 

organization  of,  398 

appeals    from,     to    Supreme 
Court,  402 

jurisdiction  of,  405,  410 
Districts 

congressional,  188 
Diversity  of  Citizenship 

jurisdiction  of  federal  courts 
based  upon,  411  et  seq.  442 

of  corporations,  412 

fictitious  citizenship,  413 

of  national  banks,  413 
Divorce 

full  faith  and  credit  of  decrees 

of,  80  et  seq. 
Doing  Business 

by  foreign  corporations,  253 
Domestic  Disorder 

use  of  militia  to  suppress,  501 
Domicile 

in  divorce  proceedings,  80  et 
seq. 

of  aliens,  96 


INDEX 


561 


Double  Jeopardy 

what  constitutes,  316 
Double  Taxation 
prohibited,  395 
Dred  Scott  Case 

doctrine  of,  100 
Drummers 

and  interstate  commerce,  255 
Due  Process  of  Law 
denned,  74,  333 
and  taxation,  214,  226 
and  self-incrimination,  318 
procedural    requirements    of, 

334 

appeals  not  required,  336 
trial  in  courts  of  law  not  nec- 
essary, 336 
confrontation  of  witnesses  not 

essential  to,  336 
substantive  rights  protected, 

337 

liberty  denned,  339 
police  power  and,  341 
Duties 
denned,  212 
upon  exports,  221 

E 

Educational  Qualifications 
upon   the   suffrage,    constitu- 
tionality of,  187 
Elections 

of  members  of  Congress,  186 

et  seq. 
congressional,  right  to  vote  at, 

a  federal  right,  190 
federal  control  of,  191 
of  senators,  195  et  seq. 
Electors 

presidential,  appointment  of, 
471  et  seq. 

36 


Eleventh  Amendment 
adoption  of,  456 
does  not  prevent  review  by 
Supreme    Court    of    state 
criminal  suits,  457 
effect  of,  on  first  eight  amend- 
ments, 457 
Eminent  Domain 
right  of,  possessed  by  United 

States,  133 
power  of,  distinguished  from 

taxation,  209 
federal  power,  381 
Employers'  Liability 

federal  acts,  275  et  seq. 
Enlistment 

in  army  or  navy,  obligations 

assumed  by,  494 
Equal  Protection 

of  the  laws,  93,  343,  350  et  seq. 
classifications,  353 
similar  but  not  the  same  privi- 
leges required,  354 
Equality 

in  taxation,  216 
Evidence 

rules    of,    in    federal    courts, 

443 
Excises 

defined,  213 
Exclusion 
of  aliens,  97 

of  articles  from  interstate  com- 
merce by  the  States,  248 
of  Chinese,  534 
Ju  Toy  Case,  536 
Exclusive  Federal  Powers 

defined,  57 
Executive  Interpretation 

force  of,  33 
Expatriation 

law  governing,  107  et  seq. 


562 


INDEX 


Expediency 
of  legislation,  not  a  subject  of 

judicial  examination,  31 
Export  Duties 

defined,  221,  257 
Ex  Post  Facto  Legislation 

defined,  310 
Express  Limitations 

discussed,  55 
Express  Powers 

defined,  49 
Expulsion 

of  aliens,  97 
Extradition 

between    the    States,    87    et 

seq. 
may  not  be  compelled  by  the 

Federal  Government,  87 
by  a  State  to  a  foreign  State, 

88 

auxiliary  state  legislation,  89 
judicial   examination   of  pro- 
ceedings for,  89 
trial  for  offenses  •  other  than 

those  extradited  for,  90 
who  are  fugitives,  91 
power  of  the  President  in  ab- 
sence of  statute,  163 
Extrinsic  Evidence 
when  resorted  to,  34 

F 

Federal  Powers 

supremacy  of,  18  et  seq. 
general  extent  of,  47  et  seq. 
to  be  liberally  construed,  49 
express  limitation  upon,  55 
implied  limitations  upon,  56 
exclusive  and  concurrent,  57 

Federal  Question 
defined,  404 


Federal  Rights 

under  the  Fourteenth  Amend- 
ment, 68 
Federal  State 

and  confederacy  distinguished, 

6 
Federalist,  The 

interpretative  value  of,  37 
Ferries 

state  control  of,  241 
Fifteenth  Amendment 

enforcement    clause    of,    186, 

189,  193 
see  "Congress";  "Elections"; 

"Suffrage" 
Foreign  Commerce 

see  "Interstate  Commerce" 
Foreign  Corporations 
rights  of,  85 

state  control  of,  when  engaged 
in  interstate  commerce,  252 
Foreign  Relations 

see  "Treaty  Power" 
Fourteenth  Amendment 
adoption  of,  65 
general  purpose  of,  65  et  seq. 
effect  upon  first  eight  amend- 
ments, 71 
legislative  power  granted  by, 

73 

declaration  of,  as  to  citizen- 
ship, 100 

provision  of,  as  to  apportion- 
ment of  members  of  Con- 
gress, 186 

see  "Citizenship " ;  "Due Proc- 
ess"; "Equal  Protection" 
Franchises 

state  taxation  of,  372 
taxation  of,  394 
Fraud  Orders 

power  to  issue,  534,  540 


INDEX 


563 


Free  Intercourse 

a  federal  right,  70 
Freedom  of  Press 

right  of,  300 
fugitives 

see  " Extradition" 
Full  Faith  and  Credit 
defined,  76 
in  the  District  of  Columbia 

and  in  the  territories,  77 
federal    judgments    and    de- 
crees, 77 

applies    only    to    civil    judg- 
ments and  decrees,  77 
judgments  in  rem  and  in  per- 

sonam,  79 
divorce,  80 


power   of   President    to   sus- 
pend, 518 
Harbor  Regulations 

state  authority,  241 
Hatters'  Case 

doctrine  of,  284 
Hawaii 

annexation  of,  by  joint  resolu- 
tion, 125 
jury  trial  in,  146 
citizenship  in,  152 
Hearing 

necessity  for,  in  tax  proceed- 
ings, 226 

History  of  the  Times 
as  a  means  of  interpretation, 
37 


Game  Laws,  State 

and  interstate  commerce,  247 
Government 

defined,  1 

republican  form  of,  59 

de  jure,  character  of,  62 

military  and  presidential,  in 
acquired  territories,  134  et 
seq. 

de  facto  governments,  134 
Gross  Receipts 

see  "Receipts" 


Habeas  Corpus 

issuance  of  writs  of,  by  federal 

courts,  422 
issued  only  when  imperative, 

424 

>  suspension  of,  in  time  of  war, 
514  et  seq. 


Impeachment 

persons  subject  to,  467 

members  of  Congress  not  sub- 
ject to,  467 

for  what  offenses,  468 

effect  of  dissolution  of  Con- 
gress, 469 

punishment  under,  469 
Implied  Limitations 

discussed,  56 

on  the  treaty  power,  173  et 

seq. 
Implied  Powers,  49 

"necessary  and  proper"  con- 
strued, 50 
Imposts 

defined,  212 
Income  Taxes 

not  direct,  223 
Incorporated  Territories 

status  of,  141  et  seq. 

see  "Insular  Cases" 


564 


INDEX 


Indians 

lands  of,  109  et  seq. 

legal  status  of,  111  et  seq. 

federal  jurisdiction  exclusive, 
113 

naturalization  of,  by  statute, 
115 

land  in  severalty  acts,  115 

commerce  with,  292 
Infamous  Crimes 
defined,  314 
Inferior  Officers 

denned,  486 
Information 

to  Congress,  482 
Inherent  Sovereign  Powers 

doctrine  of,  54 
Inheritance  Taxes 

constitutionality  of,  218 

not  direct,  223,  225 
Injunction 

may  not  be  issued  by  state 
courts  to  federal  courts,  425 

when  issued  by  federal  to  state 

courts,  426 
Insolvency 

see  "Bankruptcy" 
Inspection  Laws 

state,     and    interstate    com- 
merce, 246 
Insular  Cases 

doctrines  of,  137,  144  et  seq. 

see  "Territories" 
Insurance 

not  commerce,  234 

bearing    of    lottery    decision 

upon,  235 
Insurance  Companies 

tax  on  receipts  of,  not  direct, 

222 
Intangible  Personalty 

taxation  of,  390 


Intent 

to  export,  236 
International  Law 

in  federal  courts,  439 
International  Powers 

of  United  States,  53 
Interpretation 

see  "Construction" 
Interstate  Comity 

see  "Comity" 
Interstate  Commerce 

importance  of  the  commerce 
clause,  231 

defined,  231 

transportation     essential     to, 
231 

instrumentalities  of,  232 

embraces  navigation,  233 

persons  subjects  of,  233 

bills  of  exchange,  233 

insurance,  234 

lotteries,  235 

correspondence  schools,  235 

production     of     commodities 
not  included  in,  236 

intent  to  export  not  control- 
ling, 236 

includes  sales,  237 

original  package  doctrine,  238 
et  seq. 

federal  power  exclusive,  239 

state  police  powers,  242  et  seq. 

state  regulation  of  trains,  244 

state  inspection  laws,  246 

state  game  laws,  247 

power  of  States  to  exclude  ar- 
ticles from,  248 

liquor  laws,  249 

Wilson  law,  249 

oleomargarine,  250 

authority  of  States  over  for- 
eign corporations,  252 


INDEX 


565 


state  taxation  of,  253  et  seq. 

drummers,  255 

peddlers,  256 

state  taxation  of  articles  of, 

256 

goods  in  transit,  257 
persons  in  transit,  258 
of  property  of  carriers,  259 
unit  of  use  rule,  260 
taxation  of  receipts,  260 
charter  provisions,  262 
taxation  of  capital  stock,  263 
state  regulation  of  carrier  com- 
panies, 263 

regulation  of  rates,  264 
routes  outside  the  State,  ter- 
minals within,  265 
federal  legislative  power  over, 

267  et  seq. 
federal     police      regulations, 

268 

prohibition  of,  269 
commodities  clause  of  act  of 

1906,  271 
federal     employers'     liability 

acts,  275  et  seq. 
safety  appliances  acts,  277 
federal  anti-trust  act,  279  et 

seq. 
federal  control  of  corporations 

engaged  in,  286 
federal     powers     to     charter 
manufacturing     companies, 
288 

federal  taxing  powers,  289 
federal   control   of   navigable 

waters,  290 
and  common  law,  446 
Interstate   Commerce  Commis- 
sion 

establishment  of,  267 
rate-making  power  of,  550 


Interstate  Relations 

full  faith  and  credit,  76 

extradition,  87  et  seq. 

compacts  between  the  States, 

92  et  seq. 
Intrinsic  Evidence 

when  resorted  to,  34 
Involuntary  Servitude 

see  "Slavery" 
Irrigation 

interstate  regulation,  450 


Jeopardy,  Double 

what  constitutes,  316 
Joint  Resolution 

annexation  of  Texas  and  Ha- 
waii by,  125 
Judgments 
federal,  full  faith  and  credit 

of,  77 
Judicial  Power 

distinguished    from    jurisdic- 
tion, 527 
Judiciary,  Federal 

constitutional  provisions,  396 
independence      of,       420     et 

seq. 
power  to  issue  writs  of  habeas 

corpus,  422 
see  "Courts" 
Juries 

in  civil  suits,  324  et  seq. 
Jurisdiction 
distinguished     from     judicial 

power,  527 
Jury 

constitutional    provisions    re- 
garding, 312  et  seq. 
Jury  Trial 
in  Hawaii,  146 


566 


INDEX 


Legal  Tender 

constitutionality    of,    228    et 

seq. 
Legislation 

process  of,  199  et  seq. 
Legislative  Debates 

interpretative  value  of,  38 
Legislative  Interpretation 

force  of,  33 
Legislative  Power 

delegation  of,  547  et  seq. 

to  local  governments,  547 

administrative  ordinances,  548 

rate-making  power,  549 
Liberty 

defined,  as  protected  by  due 

process  of  law,  339 
Limitations 

express,  upon  United  States, 
55 

implied,  56 
Liquor  Laws 

and  interstate  commerce,  249 
Local  Governments 

delegation  of  legislative  power 

to,  547 
Local  Option  Laws 

constitutionality  of,  61,  note 
Lottery  Tickets 

articles  of  commerce,  235 


M 


Mails 

see  "Postal  System" 
Malice 

responsibility   of   administra- 
tive agents  for  acts   com- 
mitted with,  545 
of  courts,  546 


Mandamus 

may  not  be  issued  by  State  to 

federal  authorities,  425 
to  reinstate  in  office,  490 
when  issued  to  administrative 

officials,  540  et  seq. 
amenability  of  President  to, 

542 

Manufacturing 
not    included    in    commerce, 

236 

Manufacturing  Companies 
power    of    United    States    to 

charter,  288 
Maritime  Jurisdiction 

see  " Admiralty" 
Marque  and  Reprisal 

letters  of,  306 
Marriage 

see  "Divorce" 
Martial  Law 
defined,  508 
a   form   of    political    power, 

508 

limitations  upon,  509 
does  not  abrogate  civil  law, 

510 
distinguished    from    military 

government,  511 
in  time  of  war,  512 
MilJigan  Case,  514 
Merger  case 

doctrine  of,  283 
Military  Governments 
in  territories,  134 
of  foreign  territory,  502 
of  domestic  territory,  504 
distinguished     from     martial 

law,  511 
Military  Law 

constitutional  provisions,  491 
defined,  493 


INDEX 


567 


articles  of  war,  493 
obligations  assumed  by  enlist- 
ment, 494 
courts-martial,  495 
powers  of  commander-in-chief , 

498 

declaration  of  war,  499 
prosecution  of  war,  499 
militia,  500 
Military  Occupation 
does  not  operate  to  annex  ter- 
ritory, 134 
Military  Tribunals 
power  of    United   States    to 
vest    exclusive    jurisdiction 
in,  497 

see  "Courts-Martial" 
Militia 

President's     power     to     call 

out,    a    political     question 

not    judicially    reviewable, 

436 

organization   and  disciplining 

of,  500 

in  federal  service,  501 
to  suppress  disorder,  501 
Milligan  Case 

discussed,  514 
Misprision  of  treason 

defined,  322 
Modern  Conditions 
application  of  constitution  to, 

41 
Modus  Vivendi 

how  entered  into,  162 
Mortgages 

taxation  of,  390 
Motives 

of  legislature  will  not  be  ex- 
amined by  courts,  30 
Movables 
taxation  of,  390 


N 

National  Banks 

citizenship  of,  413 
Natural  Laws 

force  of,  40 
Naturalization 

by  statute,  104 

force  of  Fourteenth  Amend- 
ment, 104 

is  a  federal  power,  105 

is  a  judicial  act,  105 

effect  of  annexation  of  terri- 
tories upon  their  inhabit- 
ants, 106 

of  Indians,  115  et  seq. 

federal  power  exclusive,  294 
Navigability 

test  of,  in  admiralty  jurisdic- 
tion, 462 
Navigable  Waters 

federal  control  of,  290 
Navigation 

embraced  in  commerce,  233 

see  "Admiralty" 
Neagle  Case 

discussed,  423 
"Necessary  and  Proper" 

meaning  of,  50 

McCulloch  v.  Maryland,  51 
Negotiation  of  Treaties 

how  conducted,  157 
Nomination 

to  office,  487 
Northern  Securities  Case 

doctrine  of,  283 


Obligation  of  Contracts 

constitutional  provision  as  to, 

344 
indirect  impairment  of,  345 


568 


INDEX 


general  scope  of,  356  et  seq. 

modes  of  enforcement  may  be 
changed,  357 

limits  the  taxing  power,  357 

applies   to    contracts   of   the 
States,  357 

marriage  not  a  contract,  358 

licenses,  358 

charters    of    public    corpora- 
tions, 359 

private  corporations,  360 

charter    grants    strictly    con- 
strued, 361 

police  power  and,  361 

tax  exemptions,  362 

construction  of  contracts,  363 

force  of  state  decisions,  365 
Occupation 

military,  does  not  annex  terri- 
tory, 134 
Officers 

state,  suits  against,  458  et  seq. 

civil,  who  are,  467 

responsibility    for    acts    com- 
mitted by,  542 
Offices 

public,  not  a  property  or  con- 
tract right,  63 

suits  between  claimants  to,  64 

federal,  congressmen  disquali- 
fied to  hold,  183 

defined,  485 

nomination  to,  487 

creation  of,  487 

see  "Appointing  Power" 
Oleomargarine 

and  interstate  commerce,  250 
Ordinances 

administrative,  551 

penal,  552 
Original  Jurisdiction 

of  Supreme  Court,  399 


may   be   granted    to    inferior 

courts,  400 
Original  Package 

doctrine  of,  238  et  seq. 


Panama  Canal 

power  of  United  States  to  con- 
struct, 287 
Pardons 

power  of  President  to  grant, 

483,  528 
Patents 

protection  of,  304 

state  taxation  of,  372 
Peddlers 

and  interstate  commerce,  256 
Penal  Ordinances 

power  to  issue,  552 
Peonage 

denned,  320 
Persons 

are  subjects  of  commerce,  233 

state  taxation  of,  in  interstate 

commerce,  258 
Petition 

right  of,  328 
Philippines 

presidential    government    in, 
139 

citizenship  of  inhabitants  of, 

152 
Pilotage 

state  authority  over,  241 
Piracy 

federal  power  to  define  and 

punish,  305 
Places  Purchased 

federal  authority  over,  132 
Police  Power 

of  the  States  and   interstate 
commerce,  242  et  seq. 


INDEX 


569 


includes  matters  of  public  con- 
venience, 246 
defined,  341 

may  not  be  parted  with,  342 
not  without  limits,  342 
and   obligation   of   contracts, 

361 

martial  law  a  form  of,  508 
Political  Privileges 

no  interstate  comity  in,  84 
Political  Questions 
defined,  434 

existence  and  extent  of  sover- 
eignty, 435 
Porto  Rico 
annexation  of,  138 
Foraker  act,  139 
status  of,  144,  152,  153 
Postal  Service 

fraud  orders,  534,  540 
Postal  System 
federal  control  of,  299 
exclusion  of  matter  from  the 

mails,  300 

see  "Fraud  Orders" 
Powers 

delegated  and  reserved,  distin- 
guished, 48 

express  and  implied,  49 
resulting,  52 
Preamble 

interpretative  value  of,  39 
President 

power  of,  in  newly  acquired 

territory,  139 

negotiation  of  treaties  by,  157 
power    of,    to    settle    claims 

against  foreign  States,  162 
power  of,    as   commander-in- 
chief  of  army  and  navy  to 
enter  into  military  conven- 
tions, 163 


power  of,  to  extradite,  163 
power  of,  to  denounce  treaties, 

175 
approval  of,  not  required  for 

constitutional  amendments, 

178 
participation  of,  in  law  making, 

203 

power  of,  to  declare  or  recog- 
nize existence  of  war,  306 
election  of,  407  et  seq. 
appointment  of  electors,  471 
Twelfth  Amendment,  472 
counting  the  votes  for,  473 
law  of  1887,  473 
succession,  475 
power  and  duties  of,  477 
as  administrative  chief,  478  et 

seq. 

power  of,  to  pardon,  483,  528 
power  of,  to  suspend  writ  of 

habeas  corpus,  518 
amenability    of,    to    judicial 

writs,  542 
obligation  of,  to  enforce  law, 

542 
,  Presidential  Governments 

law  governing,  135 
Press 

freedom  of,  326 
Private  International  Law 

as  applied  to  the  States,  76 
Privileges  and  Immunities 

federal,  69 
Procedure 

rules  of,  in  federal  courts,  443 
Production 
of  commodities  not  included  in 

commerce,  236 
Prohibition 

of  interstate  commerce,  269  et 

seq. 


570 


INDEX 


Proprietary  Rights 

of  the  States,  84 
Protective  Tariffs 

constitutionality  of,  219 
Protocols 

force  of,  160,  162 
Public  Purpose 

taxes  must  be  for  a,  214 
Public  Service  Corporations 

regulation  of  rates  of,  549 
Pure  Food  Law 

provisions  of,  273 


Qualifications 

of  members  of  Congress,  180 
determination  of,  181 

Quorum 

in  Congress,  199 


R 


Races 

separation  of,  355 
Railways 

see  "Interstate  Commerce"; 
"Public    Service    Corpora- 
tions";   "Rates";    "Taxa- 
tion" 
Rates 

of  interstate  carrier  companies, 

state  regulation  of,  264 
railway,    regulation    of,    278, 

549 
Receipts 

from     interstate     commerce, 

state  taxation  of,  260 
Recognition 

of  belligerency,  159 
Records  of  Congress 
conclusiveness  of,  200 


Referendum 

constitutionality  of,  61,  550 
Reinstatement 

in  office,  mandamus,  490 
Religious  Freedom 

right  of,  325 
Removals 

of  suits  from  state  to  federal 
courts,  415  et  seq. 

state  restrictions  upon,  428  et 
seq. 

from  office,  power   to  make, 
489 

injunction  to  prevent,  489 

mandamus  to  reinstate,  490 
Representatives 

qualifications  required,  180 

qualifications   determined   by 
the  House,  181 

Roberts  Case,  182 

expulsion  of,  182 

privileges  of,  184 

election  of,  186  et  seq. 

mode  of  apportionment,  188 

federal  control  of  elections  of, 
191 

vacancies,  how  filled,  198 
x  Reprieves 

power  of  President  to  grant, 

483 

Republican    Form    of    Govern- 
ment 

defined,  59 
Resulting  Powers 

defined,  52 
Retroactive  Legislation 

constitutionality  of,  525 
Revenue  Laws 

effect  of  treaties  upon,  167 
Revenue  Measures 

in  Congress,  202 
Roberts,  Brigham  H. 


INDEX 


571 


excluded  from  House  of  Repre- 
sentatives, 182 
Roosevelt 

doctrine  of,  as  to  implied  fed- 
eral powers,  44 
Rules  of  House  and  Senate 
constitutional  force  of,  201 


Safety  Appliances  Acts 

federal,  277 
Salaries 

taxation  of,  372 
Sales 

included  in  commerce,  237 
Searches  and  Seizures 

discussed,  300,  320 
Securities,  Public 

taxation  of,  373 
Self-Incrimination 

defined,  318 
Senate 

participation    of,    in    treaty- 
making  power,  156 

power  of,  to  amend  treaties, 
159 

international  agreements  not 
requiring  submission  to,  161 

vacancies  in,  197 
Senators 

qualifications  required,  180 

qualifications   determined   by 
the  Senate,  181 

expulsion  of,  182 

privileges  of,  184 

election  of,  195  et  seq. 
Separation  of  Powers 

principle  of,  512 

in  States,  521 

in  federal  government,  522 

not  complete,  523 


general    principle    governing, 

524 
declaratory    and    retroactive 

legislation,  525 
legislative  control  of  judiciary, 

525 

contempts,  577 
pardoning  power,  528 
performance  of  administrative 

acts  by  courts,  530 
judicial  review  of  administra- 
tive determinations,  531 
judicial  powers  and  adminis- 
trative agents,  531 
conclusiveness  of  administra- 
tive determinations,  532 
fraud  orders,  534 
Chinese  exclusion  cases,  534 
arbitrary   administrative  dis- 
cretion, 538 
mandamus,  541 
official  responsibility  for  ultra 

vires  acts,  544 
for  malice,  545 
Separation  of  Races,  355 
Service 

constructive,  79 

in  divorce  proceedings,  80  et 

seq. 
Sherman  Anti-Trust  Act 

see   "Anti-Trust  Act";   "In- 
terstate Commerce" 
Slaughter  House  Cases 

doctrines  of,  67 
Slavery 

constitutional  provision,  329 
see       "Thirteenth      Amend- 
ment" 
Slaves 

importation  of,  308 
Sovereignty 
defined,  2 


572 


INDEX 


unity  and  indivisibility,  4,  7 
territorial,  95 

existence  and  extent  of,  a  po- 
litical question,  435 
Special  Assessments 
authority  for,  381 
distinguished  from  taxes,  383 
constitutional  requirements  of, 

384  et  seq. 

in  excess  of  benefits,  385 
Speech 

freedom  of,   of  congressmen, 

185 

Speech  and  Press 
freedom  of,  326 
Speedy  Trial 

right  to,  316 
Spirit  of  the  Constitution 

interpretative  force  of,  41 
Standard  Oil  Case 
doctrine  of,  285 
Stare  Decisis 
force  and  doctrine  of,  in  field 

of  constitutional  law,  45 
State 
defined,  1 

territorial  jurisdiction  of,  95 
State  Courts 

writs   of   error  to,   from   Su- 
preme Court,  403 
removal  of  suits  into  federal 

courts,  415  et  seq. 
concurrent  jurisdiction  of,  416 
may  riot  issue  mandamus,  in- 
junctions,   or   certiorari   to 
federal  courts,  425 
injunctions   to,    from   federal 

courts,  426 

Congress  may  not  confer  ju- 
risdiction upon,  432 
State  Governments 
de  jure,  62 


State  Law 

in  federal  courts,  441  et  seq. 

when  construction  not  settled, 

444 
States 

autonomy  of,  58 

governments  of,  when  repub- 
lican in  form,  59 

de  jure  governments  of,  62 

offices  of,  64 

federal  supervision  of  activ- 
ities of,  65  et  seq. 

police  powers  of,  68 

prohibitions  of  Fourteenth 
Amendment  directed  against 
acts  of,  74 

independent  inter  se,  76 

have  no  extraterritorial  pow- 
ers, 78 

comity  clause,  83  et  seq. 

political  privileges  in,  84 

proprietary  rights  of,  84 

control  of  foreign  corporations, 
85 

extradition  by,  87  et  seq. 

compacts  between,  92  et  seq. 

compacts  with  the  United 
States,  93 

equality  of,  93 

citizenship  in,  101 

admission  of,  to  the  Union, 
117 

reserved  rights  of,  and  treaties, 
170  et  seq. 

police  powers  of,  and  inter- 
state commerce,  242  et  seq. 

laws  of,  in  federal  courts, 
441 

suits  between  and  to  which  a 
party,  449  et  seq. 

civil  suits  of,  against  individ- 
uals, 451 


INDEX 


573 


suits  between,  and  the  United 

States,  452 

suits  between,  and  foreign 
States  or  their  citizens, 
453 

suability  of,  455  et  seq. 
suits  against  officers  of,  458 
suits  to  recover  property  held 

by,  459 

administrative  decentraliza- 
tion in,  481 

suppression  of  domestic  dis- 
order in,  502 
States'  Rights 

doctrine  of,  22 
Stock    • 

taxation  of,  392 
Stock  Yards 

and  interstate  commerce,  281 
Strict  Construction,  39 
see  "States'  Rights" 
Suability 

of  States,  455  et  seq. 

see  "Eleventh  Amendment"; 

"States" 
Succession 

presidential,  475 
act  of  1792,  476 
Suffrage 

not  a  federal  right,  72 
educational          qualifications 

upon,  187 

qualifications  upon,  189 
not   a  necessary   incident   of 

federal  citizenship,  189 
disfranchisement    of,    in    the 

Southern  States,  194 
see  "Elections" 
Sugar 

tax  on  manufacture  of,  224 
Sugar  Trust  Case 
doctrine  of,  280 


Supreme  Court 

influence  of,  in  developing  na- 
tional   sovereignty,     19    et 

seq. 
review  of  decisions   of  state 

courts,  21 

organization  of,  397 
original  jurisdiction  of,  399 
appellate       jurisdiction      of, 

400 
appeals  from  district  courts, 

402 
from  circuit  courts  of  appeal, 

402 
writs  of  error  to  state  courts, 

403 

Suspension 
of  sentences,  power  of  courts 

to  grant,  484 
of  writ  of  habeas  corpus,  law 

governing,  514  et  seq. 


Tangible  Personalty 

taxation  of,  388 
Tariff 

constitutionality  of  protective, 

219 
Taxation 

federal  powers  of,  208  et  seq. 
power  of,  distinguished  from 

eminent  domain,  209 
extent  of  power  of,  209 
use  of  power  of,  for  regulative 

purposes,  210 
limitations  upon  federal  power 

of,  213 

due  process  of  law  in,  214 
equality  in,  216 
uniformity  of,  217 
of  inheritances,  218 


574 


INDEX 


due  process  of  law  and,  226 

state,  of  interstate  commerce, 
242,  253  et  seq. 

of  drummers,  255 

of  peddlers,  256 

of  articles  of  commerce,  256 

of  goods  in  transit,  257 

of  persons  in  transit,  258 

of  property  of  interstate  car- 
riers, 259 

unit  of  use  rule,  260 

of  receipts  from  interstate 
commerce,  260 

federal  power  of,  with  refer- 
ence to  interstate  commerce, 
289 

limitations  upon  States'  power 
of,  368  et  seq. 

of  federal  governmental 
agencies,  369 

of  property  of,  370 

of  franchises,  372,  388,  394 

of  patent  rights,  372 

of  salaries,  372 

of  federal  property,  373 

of  federal  securities,  373 

of  shares  of  stock,  375 

of  bequests,  376 

of  state  agencies,  377 

of  state  documents,  380 

property  must  be  within  the 
jurisdiction,  387 

of  tangible  personal  property, 
388 

of  property  within  several  ju- 
risdictions, 388 

of  capital  stock,  389 

of  movables,  390 

of  intangible  personalty,  390 

of  bonds,  390 

of  stock,  392 

of  credits,  392 


double  taxation,  395 

see  "Special  Assessments" 
Taxes 

denned,  208 

levying  of,  a  legislative  act,  208 

assessment  of,  administrative, 
208 

duties,  212 

imposts,  212 

excises,  213 

must  be  for  a  public  purpose, 
214 

protective  tariffs,  219 

export  duties,  221 

direct,  222 

on  carriages,  222 

on  insurance  receipts,  222 

on  circulating  notes,  222 

on  incomes,  223 

on  sales  at  exchanges,  224 

on  tobacco,  224 

on    manufacturing    of    sugar, 
224 

federal  corporation,  225 

exemptions,  362 
Technical  Terms 

how  construed,  34 
Telegraph  Companies 

state  taxation  of,  253,  260 
Territorial  Sovereignty 

defined,  95 
Territories 

full  faith  and  credit  clause  not 
applicable  to,  77 

inhabitants  of,  not  citizens  of 
a  State,  102 

power  of  United  States  to  ac- 
quire, 120  et  seq. 

annexation  of  Hawaii,  125 

power  to  govern,  127 

governments  in,  are  congres- 
sional, 128 


INDEX 


575 


military  and  presidential  gov- 
ernments in,  134  et  seq. 
not  annexed  by  conquest,  134 
presidential   governments   in, 

135 

annexation  by  treaty,  137 
powers  of  President  in,  139 
incorporated   and   unincorpo- 
rated, 141  et  seq. 
organized    and    unorganized, 

142 

slavery  in,  148 
citizenship  of  inhabitants  of, 

150  et  seq. 

commerce  with,  292 
see       ' '  Hawaii " ;       "  Insular 
Cases";      "Philippines"; 
"Porto  Rico" 
Texas 

admission  of,   to  the  Union, 

118,  125 
Thirteenth  Amendment 

application  of,  to  unincorpo- 
rated territories,  148 
Tobacco 

taxes  on,  224 
Trade-marks 

federal  power  over,  304 
Trains,  Interstate 

state  regulation  of,  244 
Transportation 

essential  to  commerce,  231 
Treason 

defined,  322 
Treaties 

provision  of,   annexing  terri- 
tories, 150 
negotiation  of,  157 
enforcement  of,  165  et  seq. 
auxiliary  legislation,  165 
effect  of,  on  statutes,  166 
effect  of,  on  revenue  laws,  167 


denunciation  of,  175 
construction  of,  175 
existence  of,  a  political  ques- 
tion, 435 
Treaty 

annexation   by,    of   territory, 

137  et  seq. 
Treaty  Power 
federal    authority    exclusive, 

154 
federal  power  comprehensive, 

155 

manner  of  exercise  of,  156 
power  of   Senate    to   amend 

treaties,  159 
international  agreements  not 

submitted    to   the   Senate, 

161 
constitutional  extent  of,   169 

et  seq. 

not  expressly  limited,  169 
reserved  rights  of  the  States, 

170 

implied  limitations,  173 
may  not  incorporate  territory 

into  the  United  States,  175, 

note. 
Trial  by  Jury 

constitutional  provisions,  313 

et  seq. 

Twelfth  Amendment 
necessity  for,  472 


Ultra  Vires  Acts 
responsibility  of  officials  for, 

544 

Unconstitutional  Legislation 
rules  governing  determination 

of,  29  et  seq. 
see  "Construction";  "Courts" 


576 


INDEX 


Uniformity  of  Taxation 

what  constitutes,  217 
Unincorporated  Territories 

status  of,  141  et  seq. 

see  "Insular  Cases" 
Unit  of  Use  Rule 

in  taxation,  260,  389 
United  States 

suits  between,  and  States  of 
the  Union,  452 

suits  against,  459  et  seq. 
Unwritten  Constitutional  Laws 

force  of,  40 


Vacancies 
in  Senate,  how  filled,  197 


Veto  Power 
of  the  President,  204,  542 

W 

Waiver 

of   constitutional   guarantees, 

314 
War 

declaration  of,  306,  498 

existence  of,  a  political  ques- 
tion, 435 

prosecution  of,  499 
Weights  and  Measures 

constitutional  provision,  298 
Wilson,  James 

doctrine  of,  as  to  implied  fed- 
eral powers,  44 
Wilson  Law 

provisions  of,  249 


APPENDIX 


ARTICLES  OF  CONFEDERATION 

ARTICLE    I 

The  style  of  this  confederacy  shall  be,  "The  United  States  of 
America." 

ARTICLE    II 

Each  State  retains  its  sovereignty,  freedom,  and  independence, 
and  every  power,  jurisdiction,  and  right,  which  is  not  by  this 
confederation  expressly  delegated  to  the  United  States  in  Con- 
gress assembled. 

ARTICLE    III 

The  said  States  hereby  severally  enter  into  a  firm  league  of 
friendship  with  each  other  for  their  common  defense,  the  security 
of  their  liberties,  and  their  mutual  and  general  welfare;  binding 
themselves  to  assist  each  other  against  all  force  offered  to,  or  at- 
tacks made  upon  them,  or  any  of  them,  on  account  of  religion, 
sovereignty,  trade,  or  any  other  pretense  whatever. 

ARTICLE    IV 

The  better  to  secure  and  perpetuate  mutual  friendship  and  in- 
tercourse among  the  people  of  the  different  States  in  this  Union, 
the  free  inhabitants  of  each  of  these  States,  paupers,  vagabonds, 
and  fugitives  from  justice  excepted,  shall  be  entitled  to  all  privi- 
leges and  immunities  of  free  citizens  in  the  several  States;  and 
the  people  of  each  State  shall  have  free  ingress  and  rtgress  to 
and  from  any  other  State,  and  shall  enjoy  therein  all  the  privi- 
leges of  trade  and  commerce,  subject  to  the  same  duties,  imposi- 
tions, and  restrictions,  as  the  inhabitants  thereof  respectively, 
provided  that  such  restrictions  shall  not  extend  so  far  as  to  pre- 
vent the  removal  of  property  imported  into  any  State  to  any  other 
State,  of  which  the  owner  is  an  inhabitant;  provided,  also,  that 
no  imposition,  duties,  or  restriction  shall  be  laid  by  any  State  on 
the  property  of  the  United  States,  or  either  of  them. 

If  any  person  guilty  of,  or  charged  with,  treason,  felony,  or 
other  high  misdemeanor,  in  any  State,  shall  flee  from  justice,  and 
be  found  in  any  of  the  United  States,  he  shall,  upon  demand  of 
the  governor,  or  executive  power,  of  the  State  from  which  he  fled, 


4  ARTICLES  OF  CONFEDERATION 

be  delivered  up  and  removed  to  the  State  having  jurisdiction  of 
his  offense. 

Full  faith  and  credit  shall  be  given  in  each  of  these  States  to 
the  records,  acts,  and  judicial  proceedings  of  the  courts  and  mag- 
istrates of  every  other  State. 

ARTICLE    V 

For  the  more  convenient  management  of  the  general  interests  of 
the  United  States,  delegates  shall  be  annually  appointed  in  such 
manner  as  the  Legislature  of  each  State  shall  direct,  to  meet  in 
Congress  on  the  first  Monday  in  November  in  every  year,  with  a 
power  reserved  to  each  State  to  recall  its  delegates,  or  any  of 
them,  at  any  time  within  the  year,  and  to  send  others  in  their 
stead  for  the  remainder  of  the  year.  -  . 

No  State  shall  be  represented  in  Congress  by  less  than  two,  nor 
by  more  than  seven  members;  and  no  person  shall  be  capable  of 
being  a  delegate  for  more  than  three  years  in  any  term  of  six 
years;  nor  shall  any  person,  being  a  delegate,  be  capable  of  hold- 
ing any  office  under  the  United  States,  for  which  he,  or  another 
for  his  benefit,  receives  any  salary,  fees,  or  emoluments  of  any 
kind. 

Each  State  shall  maintain  its  own  delegates  in  a  meeting  of 
the  States,  and  while  they  act  as  members  of  the  committee  of 
the  States. 

In  determining  questions  in  the  United  States,  in  Congress  as- 
sembled, each  State  shall  have  one  vote. 

Freedom  of  speech  and  debate  in  Congress  shall  not  be  im- 
peached or  questioned  in  any  court,  or  place  out  of  Congress,  and 
the  members  of  Congress  shall  be  protected  in  their  persons  from 
arrests  and  imprisonments,  during  the  time  of  their  going  to  and 
from  and  attendance  on  Congress,  except  for  treason,  felony,  or 
breach  of  the  peace. 

ARTICLE    VI 

No  State,  without  the  consent  of  the  United  States,  in  Congress 
assembled,  shall  send  any  embassy  to,  or  receive  any  embassy 
from,  or  enter  into  any  conference,  agreement,  alliance,  or  treaty, 
with  any  king,  prince,  or  State ;  nor  shall  any  person  holding  any 
office  of  profit  or  trust  under  the  United  States,  or  any  of  them, 
accept  of  any  present,  emolument,  office,  or  title  of  any  kind 


ARTICLES  OF  CONFEDERATION  5 

whatever,  from  any  king,  prince,  or  foreign  State;  nor  shall  the 
United  States  in  Congress  assembled,  or  any  of  them,  grant  any 
title  of  nobility. 

No  two  or  more  States  shall  enter  into  any  treaty,  confedera- 
tion, or  alliance  whatever  between  them,  without  the  consent  of 
the  United  States  in  Congress  assembled,  specifying  accurately  the 
purposes  for  which  the  same  is  to  be  entered  into  and  how  long  it 
shall  continue. 

No  State  shall  lay  any  imposts  or  duties  which  may  interfere 
with  any  stipulations  in  treaties  entered  into  by  the  United 
States  in  Congress  assembled,  with  any  king,  prince,  or  State,  in 
pursuance  of  any  treaties  already  proposed  by  Congress  to  the 
courts  of  France  and  Spain. 

No  vessel  of  war  shall  be  kept  up  in  time  of  peace  by  any 
State,  except  such  number  only  as  shall  be  deemed  necessary  by 
the  United  States,  in  Congress  assembled,  for  the  defense  of  such 
State  or  its  trade;  nor  shall  any  body  of  forces  be  kept  up  by  any 
State  in  time  of  peace,  except  such  number  only  as,  in  the  judg- 
ment of  the  United  States,  in  Congress  assembled,  shall  be  deemed 
requisite  to.  garrison  the  forts  necessary  for  the  defense  of  such 
State;  but  every  State  shall  always  keep  up  a  well-regulated  and 
disciplined  militia,  sufficiently  armed  and  accoutered,  and  shall 
provide,  and  have  constantly  ready  for  use,  in  public  stores,  a  due 
number  of  field-pieces  and  tents,  and  a  proper  quantity  of  arms, 
ammunition,  and  camp  equipage. 

No  State  shall  engage  in  any  war  without  the  consent  of  the 
United  States,  in  Congress  assembled,  unless  such  State  be  act- 
ually invaded  by  enemies,  or  shall  have  received  certain  advice 
of  a  resolution  being  formed  by  some  nation  of  Indians  to  invade 
such  State,  and  the  danger  is  so  imminent  as  not  to  admit  of  a 
delay  till  the  United  States,  in  Congress  assembled,  can  be  con- 
sulted; nor  shall  any  State  grant  commissions  to  any  ships  or 
vessels  of  war,  nor  letters  of  marque  or  reprisal,  except  it  be  after 
a  declaration  of  war  by  the  United  States,  in  Congress  assembled, 
and  then  only  against  the  kingdom  or  State,  and  the  subjects 
thereof,  against  which  war  has  been  so  declared,  and  under  such 
regulations  as  shall  be  established  by  the  United  States,  in  Con- 
gress assembled,  unless  such  State  be  infested  by  pirates,  in  which 
case  vessels  of  war  may  be  fitted  out  for  that  occasion,  and  kept 
so  long  as  the  danger  shall  continue,  or  until  the  United  States, 
in  Congress  assembled,  shall  determine  otherwise. 


6  ARTICLES  OF  CONFEDERATION 

AftTICLE    VII 

When  land  forces  are  raised  by  any  State  for  the  common  de- 
fense, all  officers  of,  or  under,  the  rank  of  colonel  shall  be  ap- 
pointed by  the  Legislature  of  each  State,  respectively,  by  whom 
such  forces  shall  be  raised,  or  in  such  manner  as  such  State  shall 
direct,  and  all  vacancies  shall  be  filled  up  by  the  State  which  first 
made  the  appointment. 


ARTICLE    VIII 

All  charges  of  war,  and  all  other  expenses  that  shall  be  in- 
curred for  the  common  defense,  or  general  welfare,  and  allowed 
by  the  United  States,  in  Congress  assembled,  shall  be  defrayed 
out  of  a  common  treasury,  which  shall  be  supplied  by  the  several 
States  in  proportion  to  the  value  of  all  land  within  each  State 
granted  to,  or  surveyed,  for  any  person,  as  such  land  and  the 
buildings  and  improvements  thereon  shall  be  estimated  accord- 
ing to  such  mode  as  the  United  States,  in  Congress  assembled, 
shall  from  time  to  time  direct  and  appoint. 

The  taxes  for  paying  that  proportion  shall  be  laid  and  levied  by 
the  authority  and  direction  of  the  Legislature  of  the  several 
States,  within  the  time  agreed  upon  by  the  United  States,  in  Con- 
gress assembled. 


ARTICLE    IX 

The  United  States,  in  Congress  assembled,  shall  have  the  sole 
and  exclusive  right  and  power  of  determining  on  peace  and  war, 
except  in  the  cases  mentioned  in  the  sixth  article — of  sending  and 
receiving  ambassadors — entering  into  treaties  and  alliances;  pro- 
vided that  no  treaty  of  commerce  shall  be  made  whereby  the  legis- 
lative power  of  the  respective  States  shall  be  restrained  from  im- 
posing such  imposts  and  duties  on  foreigners  as  their  own  people 
are  subjected  to,  or  from  prohibiting  exportation  or  importation 
of  any  species  of  goods,  or  commodities,  whatsoever — of  establish- 
ing rules  for  deciding,  in  all  cases,  what  captures  on  land  or 
water  shall  be  legal,  and  in  what  manner  prizes  taken  by  land  or 
naval  forces  in  the  service  of  the  United  States  shall  be  divided 
or  appropriated — of  granting  letters  of  marque  and  reprisal  in 


ARTICLES  OF  CONFEDERATION  7 

times  of  peace — appointing  courts  for  the  trial  of  piracies  and 
felonies  committed  on  the  high  seas,  and  establishing  courts  for 
receiving  and  determining  finally  appeals  in  all  cases  of  cap- 
tures; provided  that  no  member  of  Congress  shall  be  appointed  a 
judge  of  any  of  the  said  courts. 

The  United  States,  in  Congress  assembled,  shall  also  be  the  last 
resort,  on  appeal,  in  all  disputes  and  differences  now  subsisting 
or  that  hereafter  may  arise  between  two  or  more  States  concern- 
ing boundary,  jurisdiction,  or  any  other  cause  whatever;  which 
authority  shall  always  be  exercised  in  the  manner  following: 
whenever  the  legislative  or  executive  authority,  or  lawful  agent, 
of  any  State  in  controversy  with  another  shall  present  a  petition 
to  Congress,  stating  the  matter  in  question,  and  praying  for  a 
hearing,  notice  thereof  shall  be  given  by  order  of  Congress  to  the 
legislative  or  executive  authority  of  the  other  State  in  contro- 
versy, and  a  day  assigned  for  the  appearance  of  the  parties,  by 
their  lawful  agents,  who  shall  then  be  directed  to  appoint,  by 
joint  consent,  commissioners  or  judges  to  constitute  a  court  for 
hearing  and  determining  the  matter  in  question;  but  if  they  can 
not  agree,  Congress  shall  name  three  persons  out  of  each  of  the 
United  States,  and  from  the  list  of  such  persons  each  party  shall 
alternately  strike  out  one,  the  petitioners  beginning,  until  the 
number  shall  be  reduced  to  thirteen;  and  from  that  number  not 
less  than  seven  nor  more  than  nine  names,  as  Congress  shall  di- 
rect, shall,  in  the  presence  of  Congress,  be  drawn  out  by  lot;  and 
the  persons  whose  names  shall  be  so  drawn,  or  any  five  of  them, 
shall  be  commissioners  or  judges,  to  hear  and  finally  determine 
the  controversy,  so  always  as  a  major  part  of  the  judges,  who 
shall  hear  the  cause,  shall  agree  in  the  determination ;  and  if 
cither  party  shall  neglect  to  attend  at  the  day  appointed,  with- 
out showing  reasons  which  Congress  shall  judge  sufficient,  or,  be- 
ing present,  shall  refuse  to  strike,  the  Congress  shall  proceed  to 
nominate  three  persons  out  of  each  State,  and  the  secretary  of 
Congress  shall  strike  in  behalf  of  such  party  absent  or  refusing; 
and  the  judgment  and  sentence  of  the  court,  to  be  appointed  in 
the  manner  before  prescribed",  shall  be  final  and  conclusive;  and 
if  any  of  the  parties  shall  refuse  to  submit  to  the  authority  of 
such  court,  or  to  appear,  or  defend  their  claim  or  cause,  the  court 
shall,  nevertheless,  proceed  to  pronounce  sentence  or  judgment, 
which  shall  in  like  manner  be  final  and  decisive,  the  judgment  or 
sentence  and  other  proceedings  being,  in  either  case,  transmitted 


8  ARTICLES  OF  CONFEDERATION 

to  Congress,  and  lodged  among  the  acts  of  Congress  for  the  se- 
curity of  the  parties  concerned;  provided  that  every  commis- 
sioner, before  he  sits  in  judgment,  shall  take  an  oath,  to  be  ad- 
ministered by  one  of  the  judges  of  the  Supreme  or  Superior  Court 
of  the  State,  where  the  cause  shall  be  tried,  "well  and  truly  to 
hear  and  determine  the  matter  in  question,  according  to  the  best 
of  his  judgment,  without  favor,  affection,  or  hope  of  reward": 
provided,  also,  that  no  State  shall  be  deprived  of  territory  for  the 
benefit  of  the  United  States. 

All  controversies  concerning  the  private  right  of  soil,  claimed 
under  different  grants  of  two  or  more  States,  whose  jurisdiction 
as  they  may  respect  such  lands,  and  the  States  which  passed  such 
grants  are  adjusted,  the  said  grants,  or  either  of  them,  being  at 
the  same  time  claimed  to  have  originated  antecedent  to  such  set- 
tlement or  jurisdiction,  shall,  on  the  petition  of  either  party  to 
the  Congress  of  the  United  States,  be  finally  determined,  as  near 
as  may  be,  in  the  same  manner  as  is  before  prescribed  for  decid- 
ing disputes  respecting  territorial  jurisdiction  between  different 
States. 

The  United  States,  in  Congress  assembled,  shall  also  have  the 
sole  and  exclusive  right  and  power  of  regulating  the  alloy  and 
value  of  coin  struck  by  their  own  authority,  or  by  that  of  the  re- 
spective States — fixing  the  standard  of  weights  and  measures 
throughout  the  United  States — regulating  the  trade,  and  manag- 
ing all  affairs  with  the  Indians  not  members  of  any  of  the  States ; 
provided  that  the  legislative  right  of  any  State  within  its  own 
limits  be  not  infringed  or  violated — establishing  and  regulating 
post-offices  from  one  State  to  another  throughout  all  the  United 
States,  and  exacting  such  postage  on  the  papers  passing  through 
the  same  as  may  be  requisite  to  defray  the  expenses  of  the  said 
office — appointing  all  officers  of  the  land  forces  in  the  service  of 
the  United  States,  excepting  regimental  officers — appointing  all 
the  officers  of  the  naval  forces,  and  commissioning  all  officers 
whatever  in  the  service  of  the  United  States — making  rules  for 
the  government,  and  regulation  of  the  said  land  and  naval  forces, 
and  directing  their  operations. 

The  United  States,  in  Congress  assembled,  shall  have  authority  " 
to  appoint  a  committee  to  sit  in  the   recess  of  Congress,  to  be 
denominated  "a  Committee  of  the  States,"  and  to  consist  of  one 
delegate  from  each  State;   and  to  appoint  such  other  committees 
and  civil  officers  as  may  be  necessary  for  managing  the  general 


ARTICLES  OF  CONFEDERATION  9 

affairs  of  the  United  States  under  their  direction — to  appoint  one 
of  their  number  to  preside;  provided  that  no  person  be  allowed 
to  serve  in  the  office  of  president  more  than  one  year  in  any  term 
of  three  years — to  ascertain  the  necessary  sums  of  money  to  be 
raised  for  the  service  of  the  United  States,  and  to  appropriate 
and  apply  the  same  for  defraying  the  public  expenses — to  borrow 
money  or  emit  bills  on  the  credit  of  the  United  States,  transmit- 
ting every  half-year  to  the  respective  States  an  account  of  the 
sums  of  money  so  borrowed  or  emitted — to  build  and  equip  a 
navy — to  agree  upon  the  number  of  land  forces,  and  to  make 
requisitions  from  each  State  for  its  quota,  in  proportion  to  the 
number  of  white  inhabitants  in  such  State;  which  requisition 
shall  be  binding,  and  thereupon  the  Legislature  of  each  State 
shall  appoint  the  regimental  officers,  raise  the  men,  and  clothe, 
arm,  and  equip  them,  in  a  soldier-like  manner,  at  the  expense  of 
the  United  States;  and  the  officers  and  men  so  clothed,  armed, 
and  equipped,  shall  march  to  the  place  appointed,  and  within  the 
time  agreed  on  by  the  United  States,  in  Congress  assembled;  but 
if  the  United  States,  in  Congress  assembled,  shall,  on  considera- 
tion of  circumstances,  judge  proper  that  any  State  should  not 
raise  men,  or  should  raise  a  smaller  number  than  its  quota,  and 
that  any  other  State  should  raise  a  greater  number  of  men  than 
the  quota  thereof,  such  extra  number  shall  be  raised,  officered, 
clothed,  armed,  and  equipped  in  the  same  manner  as  the  quota 
of  such  State,  unless  the  Legislature  of  such  State  shall  judge 
that  such  extra  number  can  not  safely  be  spared  out  of  the  same; 
in  which  case  they  shall  raise,  officer,  clothe,  arm,  and  equip  as 
many  of  such  extra  number  as  they  judge  can  be  safely  spared. 
And  the  officers  and  men  so  clothed,  armed,  and  equipped  shall 
march  to  the  place  appointed,  and  within  the  time  agreed  on  by 
the  United  States,  in  Congress  assembled. 

The  United  States,  in  Congress  assembled,  shall  never  engage 
in  a  war,  nor  grant  letters  of  marque  and  reprisal  in  time  of 
peace,  nor  enter  into  any  treaties  or  alliances,  nor  coin  money, 
nor  regulate  the  value  thereof,  nor  ascertain  the  sums  and  ex- 
penses necessary  for  the  defense  and  welfare  of  the  United  States, 
or  any  of  them,  nor  emit  bills,  nor  borrow  money  on  the  credit 
of  the  United  States,  nor  appropriate  money,  nor  agree  upon  the 
number  of  vessels  of  war  to  be  built  or  purchased,  or  the  num- 
ber of  land  or  sea  forces  to  be  raised,  nor  appoint  a  commander- 
in-chief  of  the  army  or  navy,  unless  nine  States  assent  to  the 


10  ARTICLES  OF  CONFEDERATION 

same;  nor  shall  a  question  on  any  other  point,  except  for  ad- 
journing from  day  to  day,  be  determined  unless  by  the  votes  of  a 
majority  of  the  United  States,  in  Congress  assembled. 

The  Congress  of  the  United  States  shall  have  power  to  adjourn 
to  any  time  within  the  year,  and  to  any  place  within  the  United 
States,  so  that  no  period  of  adjournment  be  for  a  longer  duration 
than  the  space  of  six  months;  and  shall  publish  the  journal  of 
their  proceedings  monthly,  except  such  parts  thereof  relating  to 
treaties,  alliances,  or  military  operations  as,  in  their  judgment, 
require  secrecy;  and  the  yeas  and  nays  of  the  delegates  of  each 
State  on  any  question  shall  be  entered  on  the  journal  when  it  is 
desired  by  any  delegate;  and  the  delegates  of  a  State,  or  any  of 
them,  at  his  or  their  request,  shall  be  furnished  with  a  transcript 
of  the  said  journal,  except  such  parts  as  are  above  excepted,  to 
lay  before  the  Legislatures  of  the  several  States. 

ARTICLE    X 

The  committee  of  the  States,  or  a^ny  nine  of  them,  shall  be  au- 
thorized to  execute,  in  the  recess  of  Congress,  such  of  the  powers 
of  Congress  as  the  United  States,  in  Congress  assembled,  by  the 
consent  of  nine  States,  shall  from  time  to  time  think  expedient 
to  vest  them  with;  provided  that  no  power  be  delegated  to  the 
said  committee,  for  the  exercise  of  which,  by  the  articles  of  con- 
federation, the  voice  of  nine  States  in  the  Congress  of  the  United 
States  assembled  is  requisite. 

ARTICLE    XI 

Canada,  acceding  to  this  confederation,  and  joining  in  the 
measures  of  the  United  States,  shall  be  admitted  into,  and  en- 
titled to,  all  the  advantages  of  this  Union;  but  no  other  colony 
shall  be  admitted  into  the  same,  unless  such  admission  be  agreed 
to  by  nine  States. 

ARTICLE    XII 

All  bills  of  credit  emitted,  moneys  borrowed,  and  debts  con- 
tracted, by  or  under  the  authority  of  Congress,  before  the  assem- 
bling of  the  United  States,  in  pursuance  of  the  present  confedera- 
tion, shall  be  deemed  and  considered  as  a  charge  against  the 
United  States,  for  payment  and  satisfaction  whereof  the  said 
United  States  and  the  public  faith  are  hereby  solemnly  pledged. 


ARTICLES  OF  CONFEDERATION  11 

ARTICLE    XIII 

Every  State  shall  abide  by  the  decision  of  the  United  States,  in 
Congress  assembled,  on  all  questions  which,  by  this  confedera- 
tion, are  submitted  to  them.  And  the  articles  of  this  confederation 
shall  be  inviolably  observed  by  every  State,  and  the  Union  shall 
be  perpetual;  nor  shall  any  alteration  at  any  time  hereafter  be 
made  in  any  of  them,  unless  such  alteration  be  agreed  to  in  a 
Congress  of  the  United  States,  and  be  afterward  confirmed  by  the 
Legislature  of  every  State. 


CONSTITUTION  OF  THE  UNITED  STATES 

PREAMBLE 

WE,  the  People  of  the  United  States,  in  order  to  form  a  more 
perfect  union,  establish  justice,  insure  domestic  tranquillity,  pro- 
vide for  the  common  defence,  promote  the  general  welfare/  and 
secure  the  blessings  of  liberty  to  ourselves  and  our  posterity,  do 
ordain  and  establish  this  Constitution  for  the  United  States  cf 
America. 

ARTICLE  I 

LEGISLATIVE  DEPARTMENT 

Section  1.    Division  into  Two  Houses 

1.  All  legislative  powers  herein  granted  shall  be  vested  in  a  Con- 
gress of  the  United  States,  which  shall  consist  of  a  Senate  and  House 
of  Representatives. 

Section  2.    House  of  Representatives 

1.  The  House  of  Representatives  shall  be  composed  of  members 
chosen  every  second  year  by  the  people  of  the  several  States;  and 
the  electors  in  each  State  shall  have  the  qualifications  requisite 
for  electors  of  the  most  numerous  branch  of  the  State  Legislature. 

2.  No  person  shall  be  a  Representative  who  shall  not  have  at- 
tained to  the  age  of  twenty-five  years,  and  been  seven  years  a  citizen 
of  the  United  States,  and  who  shall  not,  when  elected,  be  an  in- 
habitant of  that  State  in  which  he  shall  be  chosen. 

3.  Representatives  and  direct  taxes  shall  be  apportioned  among 
the  several  States  which  may  be  included  within  this  Union,  ac- 
cording to  their  respective  numbers,  which  shall  be  determined  by 
adding  to  the  whole  number  of  free  persons,  including  those  bound 
to  service  for  a  term  of  years,  and  excluding  Indians  not  taxed, 
three-fifths  of  all  other  persons.    The  actual  enumeration  shall  be 
made  within  three  years  after  the  first  meeting  of  the  Congress  of 
the  United  States,  and  within  every  subsequent  term  of  ten  years, 
in  such  manner  as  they  shall  by  law  direct.    The  number  of  Repre- 
sentatives shall  not  exceed  one  for  every  thirty  thousand,   but 
each  State  shall  have  at  least  one  Representative;  and  until  such 
enumeration  shall  be  made,  the  State  of  New  Hampshire  shall  be 
entitled  to  choose  three;  Massachusetts,  eight;  Rhode  Island  and 
Providence  Plantations,   one;   Connecticut,  five;   New  York,   six; 
New  Jersey,  four;  Pennsylvania,  eight;  Delaware,  one;  Maryland, 
six;  Virginia,  ten;  North  Carolina,  five;  South  Carolina,  five,  and 
Georgia,  three. 

4.  When  vacancies  happen  in  the  representation  from  any  State, 
the  executive  authority  thereof  shall  issue  writs  of  election  to  fill 
such  vacancies. 

5.  The  House  of  Representatives  shall  choose  their  Speaker  and 
other  officers,  and  shall  have  the  sole  power  of  impeachment 


14  CONSTITUTION  OF  THE  UNITED  STATES 


Section  3.    Senate 

1.  The  Senate  of  the  United  States  shall  be  composed  of  two 
Senators  from  each  State,  elected  by  the  people  thereof,  for  six  years; 
and  each  Senator  shall  have  one  vote.    The  electors  in  each  State 
shall  have  the  qualifications  requisite  for  electors  of  the  most  numer- 
ous branch  of  the  State  legislatures. 

When  vacancies  happen  in  the  representation  of  any  State  in  the 
Senate,  the  executive  authority  of  such  State  shall  issue  writs  of  elec- 
tion to  fill  such  vacancies:  Provided,  That  the  legislature  of  any  State 
may  empower  the  executive  thereof  to  make  temporary  appointment 
uutil  the  people  fill  the  vacancies  by  election  as  the  legislature  may 
direct. 

This  amendment  shall  not  be  so  construed  as  to  affect  the  election 
or  term  of  any  Senator  chosen  before  it  becomes  valid  as  part  of 
the  Constitution.  (Effective  May  31,  1913.) 

2.  Immediately  after  they  shall  be  assembled  in  consequence  of 
the  first  election,  they  shall  be  divided,  as  equally  as  may  be,  into 
three  classes.    The  seats  of  the  Senators  of  the  first  class  shall  be 
vacated  at  the  expiration  of  the  second  year ;  of  the  second  class  at 
the  expiration  of  the  fourth  year;  and  of  the  third  class  at  the  ex- 
piration of  the  sixth  year ;  so  that  one  third  may  be  chosen  every 
second  year;  and  if  vacancies  happen,  by  resignation  or  otherwise, 
during  the  recess  of  the  Legislature  of  any  State,  the  Executive 
thereof  may  make  temporary  appointments,  until  the  next  meeting 
of  the  Legislature,  which  shall  then  fill  such  vacancies. 

3.  No  person  shall  be  a  Senator  who  shall  not  have  attained  to 
the  age  of  thirty  years,  and  been  nine  years  a  citizen  of  the  United 
States,  and  who  shall  not,  when  elected,  be  an  inhabitant  of  that 
State  for  which  he  shall  be  chosen. 

4.  The  Vice- President  of  the  United  States  shall  be  President  of 
the  Senate,  but  shall  have  no  vote,  unless  they  be  equally  divided. 

5.  The  Senate  shall  choose  their  other  officers,  and  also  a  Presi- 
dent pro  tempore,  in  the  absence  of  the  Vice-President,  or  when 
he  shall  exercise  the  office  of  President  of  the  United  States. 

6.  The   Senate  shall  have  the  sole  power  to  try  all  impeach- 
ments ;  when  sitting  for  that  purpose,  they  shall  be  on  oath  or 
affirmation.    When  the  President  of  the  United  States  is  tried,  the 
Chief- Justice  shall  preside ;  and  no  person  shall  be  convicted  with- 
out the  concurrence  of  two-thirds  of  the  members  present. 

7.  Judgment,  in  cases  of  impeachment,  shall  not  extend  further 
than  to  removal  from  office,  and  disqualification  to  hold  and  enjoy 
any  office  of  honor,  trust,  or  profit,  under  the  United  States ;  but 


CONSTITUTION  OF  THE  UNITED  STATES    15 

the  party  convicted  shall,  nevertheless,  be  liable  and  subject  to 
indictment,  trial,  judgment  and  punishment,  according  to  law. 

Section  4.    Elections  and  Meetings  of  Congress 

1.  The  times,  places,  and  manner  of  holding  elections  for  Sejia- 
tors  and  Representatives  shall  be  prescribed  in  each  State  by  the 
Legislature  thereof;  but  the  Congress  may  at  any  time,  by  law, 
make  or  alter  such  regulations,  except  as  to  the  places  of  choosing 
Senators. 

2.  The  Congress  shall  assemble  at  least  once  in  every  year;  and 
such  meeting  shall  be  on  the  first  Monday  in  December,  unless  they 
shall,  by  law,  appoint  a  different  day. 

Section  5.    Powers  and  Duties  of  the  Houses 

1.  Each  House  shall  be  the  judge  of  the  elections,  returns,  and 
qualifications  of  its  own  members;   and  a  majority  of  each  shall 
constitute  a  quorum  to  do  business ;  but  a  smaller  number  may  ad- 
journ from  day  to  day,  and  may  be  authorized  to  compel  the  at- 
tendance of  absent  members,  in  such  manner,  and  under  such  pen- 
alties, as  each  House  may  provide. 

2.  Each    House   may    determine    the    rules    of    its    proceedings, 
punish   its  members  for  disorderly  behavior,  and,  with  the  con- 
currence of  two-thirds,  expel  a  member. 

3.  Each  House  shall  keep  a  journal  of  its  proceedings,  and  from 
time  to  time  publish  the  same,  excepting  such  parts  as  may,  in 
their  judgment,  require  secrecy;   and  the  yeas  and  nays  of  the 
members  of  either  House,  on  any  question,  shall,  at  the  desire  of 
one- fifth  of  those  present,  be  entered  on  the  journal. 

4.  Neither  House,  during  the  session  of  Congress,  shall,  without 
the  consent  of  the  other,  adjourn  for  more  than  three  days,  nor  to 
any   other   place  than   that   in  which   the   two   Houses   shall  be 
sitting. 

Section  6.  Privileges  of  and  Prohibitions  upon  Members 
1.  The  Senators  and  Representatives  shall  receive  a  compensa- 
tion for  their  services,  to  be  ascertained  by  law,  and  paid  out  of  the 
Treasury  of  the  United  States.  They  shall,  in  all  cases  except 
treason,  felony,  and  breach  of  the  peace,  be  privileged  from  arrest 
during  their  attendance  at  the  session  of  their  respective  Houses, 
and  in  going  to  and  returning  from  the  same;  and  for  any  speech 


1C    CONSTITUTION  OF  THE  UNITED  STATES 

or  debate  in  either  house,  they  shall  not  be  questioned  in  any  other 
place. 

2.  No  Senator  or  Representative  shall,  during  the  time  for  which 
he  was  elected,  be  appointed  to  any  civil  office  under  the  authority 
of  the  United  States,  which  shall  have  been  created,  or  the  emolu- 
ments whereof  shall  have  been  increased,  during  such  time;   and 
no  person  holding  any  office  under  the  United  States  shall  be  a 
member  of  either  House  during  his  continuance  in  office. 

Section  r.    Revenue  Bills:  President's  Veto 
1.  All  bills  for  raising  revenue  shall  originate  in  the  House  of 
Representatives;   but   the   Senate  may  propose,   or  concur  with, 
amendments,  as  on  other  bills. 

I  2.  Every  bill  which  shall  have  passed  the  House  of  Representa- 
tives and  the  Senate  shall,  before  it  becomes  a  law,  be  presented 
to  the  President  of  the  United  States ;  if  he  approve,  he  shall  sign 
it;  but  if  not,  he  shall  return  it,  with  his  objections,  to  that 
House  in  which  it  shall  have  originated,  who  shall  enter  the  ob- 
jections at  large  on  their  journal,  and  proceed  to  reconsider  it.  If, 
after  such  reconsideration,  two-thirds  of  that  House  shall  agree 
to  pass  the  bill,  it  shall  be  sent,  together  with  the  objections,  to 
the  other  House,  by  which  it  shall  likewise  be  reconsidered,  and, 
if  approved  by  two-thirds  of  that  House,  it  shall  become  a  law.  I 
But.  in  all  such  cases,  the  votes  of  both  Houses  shall  be  determined 
by  yeas  and  nays,  and  the  names  of  the  persons  voting  for  and 
against  the  bills  shall  be  entered  on  the  journal  of  each  House 
respectively.  If  any  bill  shall  not  be  returned  by  the  President 
within  ten  days  (Sundays  excepted)  after  it  shall  have  been  pre- 
sented to  him,  the  same  shall  be  a  law,  in  like  manner  as  if  he  had 
signed  it,  unless  the  Congress,  by  their  adjournment,  prevent  its 
return,  in  which  case  it  shall  not  be  a  law. 

3.  Every  order,  resolution,  or  vote  to  which  the  concurrence  of 
the  Senate  and  House  of  Representatives  may  be  necessary  ( except 
on  a  question  of  adjournment),  shall  be  presented  to  the  President 
of  the  United  States,  and  before  the  same  shall  take  effect,  shall  be 
approved  by  him,  or,  being  disapproved  by  him,  shall  be  repassed 
by  two-thirds  of  the  Senate  and  House  of  Representatives,  accord- 
ing to  the  rules  and  limitations  prescribed  in  the  case  of  a  bill. 


CONSTITUTION  OF  THE  UXTTED  STATES    19 
Section  10*    Prohibitions  upon  the  States 

1.  No  State  shall  enter  into  any  treaty,  alliance,  or  confedera- 
tion ;   grant   letters   of  marque   and   reprisal ;    coin   money ;    emit 
bills  of  credit;  make  anything  but  gold  and  silver  coin  a  tender 
in  payment  of  debts;  pass  any  bill  of  attainder,  ex  post  facto  law, 
or  law  impairing  the  obligation  of  contracts;  or  grant  any  title  of 
nobility. 

2.  No  State  shall,  without  the  consent  of  the  Congress,  lay  any 
imposts  or  duties  on  imports  or  exports,  except  what  may  be  ab- 
solutely necessary  for  executing  its  inspection  laws :   and  the  net 
produce  of  all  duties  and  imposts  laid  by  any  State  on  imports 
or  exports,  shall  be  for  the  use  of  the  treasury  of  the  United 
States;  and  all  such  laws  shall  be  subject  to  the  revision  and  con 
trol  of  the  Congress.    No  State  shall,  without  the  consent  of  Con- 
gress, lay  any  duty  on  tonnage,  keep  troops  or  ships  of  war  in  time 
of  peace,  enter  into  any  agreement  or  compact  with  another  State, 
or  with  a  foreign  power,  or  engage  in  war  unless  actually  invaded, 
or  in  such  imminent  danger  as  will  not  admit  of  delay. 

ARTICLE  II 

EXECUTIVE  DEPARTMENT:    THE   PRESIDENT   AND   VICE-PRESIDENT 
Section  l .    Term :  Election  :  Qualifications :  Salary :  Oath  of  Office 

1.  The  executive  power  shall  be  vested  in  a   President  of  the 
United  States  of  America.    He  shall  hold  his  office  during  the  term 
of  four  years,  and,]  together  with  the  Vice-President,  chosen  for  the 
same  term,  be  elected  as  follows: 

2.  Each  State  shall  appoint,  in  such  manner  as  the  Legislature 
thereof  may  direct,  a  number  of  Electors  equal  to  the  whole  num- 
ber of  Senators  and  Representatives  to  which  the  State  may  be 
entitled  in  the  Congress;   but  no   Senator  or   Representative,  or 
person  holding  an  office  of  trust  or  profit  under  the  United  States, 
shall  be  appointed  an  Elector. 

The  following  clause  has  been  superseded  by  Article  XII.  of  the  Amendments  : 

3.    The  Electors  shall  meet  in  their  respective  States,  and  vote  by  ballot  for  two 

persons,  of  whom  one  at  least  shall  not  be  an  inhabitant  of  the  same  State  with 

themselves.    And  they  shall  make  a  list  of  all  the  persons  voted  for,  and  of  the 

number  of  votes  for  each,  which  list  they  shall  sign  and  certify,  and  transmit,  sealed, 


?0    CONSTITUTION  OF  THE  UXITED  STATES 

to  the  seat  of  the  government  of  the  United  States,  directed  to  the  President  of  the 
Senate.  The  President  of  the  Senate  shall,  in  the  presence  of  the  Senate  and  House 
of  Representatives,  open  all  the  certificates,  and  the  votes  shall  then  be  counted. 
The  person  having  the  greatest  number  of  votes  shall  be  the  President,  if  such  num- 
ber be  a  majority  of  the  whole  number  of  Electors  appointed;  and  if  there  be  more 
than  one  who  have  such  majority,  and  have  an  equal  number  of  votes,  then  the 
House  of  Representatives  shall  immediately  choose  by  ballot  one  of  them  for  Presi- 
dent ;  and  if  no  person  have  a  majority,  then,  from  the  five  highest  on  the  list,  the 
said  House  shall,  in  like  manner,  choose  the  President.  But  in  choosing  the  Presi- 
dent, the  votes  shall  be  taken  by  States,  the  representation  from  each  State  having 
one  vote ;  a  quorum  for  this  purpose  shall  consist  of  a  member  or  members  from 
;wo-thirds  of  the  States,  and  a  majority  of  the  States  shall  be  necessary  to  a  choice. 
In  every  case,  after  the  choice  of  the  President,  the  person  having  the  greatest  num- 
ber of  votes  of  the  Electors  shall  be  the  Vice-President.  But  if  there  should  remain 
t\vo  or  more  who  have  equal  votes,  the  Senate  shall  choose  from  them,  by  ballot, 
the  Vice-President. 

4.  The  Congress  may  determine  the  time  of  choosing  the  Elec- 
tors, and  the  day  on  which  they  shall  give  their  votes,  which  day 
shall  be  the  same  throughout  the  United  States. 

5.  No  person  except  a  natural  born  citizen,  or  a  citizen  of  the 
United  States  at  the  time  of  the  adoption  of  this  Constitution, 
shall  be  eligible  to  the  office  of  President ;  neither  shall  any  person 
be  eligible  to  that  office  who  shall  not  have  attained  to  the  age  of 
thirty-five  years,  and  been  fourteen  years  a  resident  within  the 
United  States. 

6.  In  case  of  the  removal  of  the  President  from  office,  or  of  his 
death,  resignation,  or  inability  to  discharge  the  powers  and  duties 
of  the  said  office,  the  same  shall  devolve  on  the  Vice-President.  and 
the  Congress  may,  by  law,  provide  for  the  case  of  removal,  death, 
resignation,  or  inability,  both  of  the  President  and  Vice-President, 
declaring  what  officer  shall  then  act  as  President;  and  such  officer 
shall  act  accordingly,  until  the  disability  be  removed,  or  a  Presi- 
dent shall  be  elected. 

7.  The  President  shall,  at  stated  times,  receive  for  his  services 
a  compensation,  which  shall  neither  be  increased  nor  diminished 
during  the  period  for  which  he  shall  have  been  elected;   and  he 
shall  not  receive,  within  that  period,  any  other  emolument  from 
the  United  States,  or  any  of  them. 

8.  Betore  he  enter  on  the  execution  of  his  office,  he  shall  take  the 
following  oath  or  affirmation: 


CONSTITUTION  OF  THE  UNITED  STATES    21 

"I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully  execute 
the  office  of  President  of  the  United  States;  and  will,  to  the  best 
of  my  ability,  preserve,  protect,  and  defend  the  Constitution  of  the 
United  States." 


Section  2.    President's  Executive  Powers 

1.  The  President  shall  be  commander- in-chief  of  the  army  and 
navy  of  the  United  States,  and  of  the  militia  of  the  several  States 
when  called  into  the  actual  service  of  the  United  States ;  he  may 
require  the  opinion,  in  writing,  of  the  principal  officer  in  each  of 
the    executive    Departments,    upon    any    subject    relating    to    the 
duties  of  their  respective  offices;  and  he  shall  have  power  to  grant 
reprieves    and    pardons   for    offences    against   the   United    States, 
except  in  cases  of  impeachment. 

2.  He  shall  have  power  by  and  with  the  advice  and  consent  of 
the  Senate  to  make  treaties,  provided  two-thirds  of  the  Senators 
present  concur;  and  he  shall  nominate,  and  by  and  with  the  advice 
and  consent  of  the  Senate  shall  appoint,  ambassadors,  other  public 
ministers  and  consuls,  judges  of  the  Supreme  Court,  and  all  other 
officers  of  the  United  States  whose  appointments  are  not  herein 
otherwise  provided  for,  and  which  shall  be  established  by  law;  but 
the  Congress  may,  by  law,  vest  the  appointment  of  svich  inferior 
officers  as  they  think  proper,  in  the  President  alone,  in  the  courts 
of  lasv,  or  in  the  Heads  of  Departments. 

3.  The  President  shall  have  power  to  fill  up  all  vacancies  that 
may  happen  during  the  recess  of  the  Senate,  by  granting  commis- 
sions which  shall  expire  at  the  end  of  their  next  session. 


Section  3.    President's  Executive  Powers  (continued) 

1.  He  shall  from  time  to  time  give  to  the  Congress  informa- 
tion of  the  state  of  the  Union ;  and  recommend  to  their  considera- 
tion such  measures  as  he  shall  judge  necessary  and  expedient.  He 
may,  on  extraordinary  occasions,  convene  both  Houses,  or  either  of 
them,  and  in  case  of  disagreement  between  them,  with  respect  to 
the  time  of  adjournment,  he  may  adjourn  them  to  such  time  as  he 
shall  think  proper.  He  shall  receive  ambassadors  and  other  public 
ministers.  He  shall  take  care  that  the  laws  be  faithfully  execu- 
ted; and  shall  commission  all  the  officers  of  the  United  States. 


2?    CONSTITUTION  OF  THE  UXITED  STATES 

Section  4.    Impeachment 

1.  The  President,  Vice-President.  and  all  civil  officers  of  the 
T  iked  States  shall  be  removed  from  office  on  impeachment  for, 
ai'd  conviction  of,  treason,  bribery,  or  other  high  crimes  and  mis- 
demeanors. 

ARTICLE  III 

JUDICIAL  DEPARTMENT 

Section  l.    Courts:    Terms  of  Office 

1.  The  judicial  power  of  the  United  States  shall  be  vested  in  one 
Supreme  Court,  and  in  such  inferior  Courts  as  the  Congress  may, 
from  time  to  time,  ordain  and  establish.  The  judges  both  of  the 
Supreme  and  inferior  Courts  shall  hold  their  offices  during  good 
behavior;  and  shall,  at  stated  times,  receive  for  their  services  a 
compensation  which  shall  not  be  diminished  during  their  continu- 
ance in  office. 

Section  2.    Jurisdiction 

1.  The  judicial  power  shall  extend  to  all  cases  in  law  and  equity 
arising  under  this  Constitution,  the  laws  of  the  United  States  and 
treaties  made,  or  which  shall  be  made,  under  their  authority;  to 
all  cases  affecting  ambassadors,  other  public  ministers,  and  con- 
suls; to  all  cases  of  admiralty  and  maritime  jurisdiction;  to  con- 
troversies to  which  the  United  States  shall  be  a  party,  to  con- 
troversies  between   two    or    more    States ;    between    a    State   and 
citfzens  of  another  State;  between  citizens  of  different  States;  be- 
tween citizens  of  the  same  State  claiming  lands  under  grants  of 
different  States;  and  between  a  State,  or  the  citizens  thereof,  and 
foreign  States,  citizens,  or  subjects. 

2.  In  all  cases  affecting  ambassadors,  other  public  ministers  and 
consuls,  and  those  in  which  a  State  shall  be  a  party,  the  Supreme 
Court   shall   have   original  jurisdiction.     In   all   the   other  cases 
before  mentioned,  the  Supreme  Court  shall  have  appellate  jurisdic- 
tion, both  as  to  law  and  fact,  with  such  exceptions,  and  under  such 
regulations,  as  the  Congress  shall  make. 

3.  The   trial    of   all    crimes,    except    in    cases    of    impeachment, 
shall   be   by   jury;    and   such    trial    shall    be    held   in    the    State 
where  the  said  crimes  shall  have  been  committed;  but  when  not 
committed  within  any  State,  the  trial  shall  be  at  such  place  or 
places  as  the  Congress  may  by  law  have  directed. 


. 


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